05-20 986
05-20 986
Board of Vet. App.Aug 31, 2016Background
- Veteran served on active duty from July 1957 to July 1960 and alleges jumping from the bow of his ship caused trauma to arms, back, neck, knees, and hands.
- VA Regional Office received a letter from the Veteran’s attorney dated January 18, 2013 and received January 24, 2013 that explicitly claimed bilateral hand disorders including carpal tunnel syndrome (CTS).
- In March 2014 the RO denied service connection for bilateral CTS; the Board granted service connection for bilateral CTS in August 2014.
- The Veteran sought an effective date earlier than April 5, 2013 for the award of service connection for bilateral CTS, arguing January 18, 2013 was the claim date.
- The Board found the claim was received by VA on January 24, 2013 and awarded an earlier effective date of January 24, 2013 (but no earlier).
- The Board remanded claims for service connection for left knee degenerative joint disease, lumbar and cervical spine disabilities, right knee disability, arthritis of the hands, increased ratings for bilateral CTS and bilateral hearing loss for further development and examinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Earlier effective date for bilateral CTS | Kovall contended the effective date should be Jan. 18, 2013 (date of attorney letter) | VA/RO asserted the claim date is date of receipt by RO (Jan. 24, 2013) | Effective date granted: Jan. 24, 2013 (date of receipt); not earlier |
| Service connection for other musculoskeletal/hand arthritis | Veteran contends in-service jump caused trauma producing current knee, back, neck, and hand arthritis | VA previously lacked corroboration; but Board found the in-service jump claim corroborated and requested medical nexus opinion | Remanded for VA exam/opinion on nexus between confirmed in-service jump trauma and current disabilities |
| Increased rating for bilateral CTS | Veteran testified CTS worsened since Jan. 2015 exam | RO relied on prior exams noting discrepancies and recommended EMG/NCV | Remanded for new VA exam with EMG/NCV and scar assessment to determine current severity |
| Increased rating for bilateral hearing loss | Veteran testified hearing worsened since May 2014 exam | RO relied on last exam evidence | Remanded for new audiological exam and functional assessment |
Key Cases Cited
- Dingess v. Nicholson, 19 Vet. App. 473 (2006) (VA notice requirements under 38 U.S.C. § 5103)
- Hartman v. Nicholson, 483 F.3d 1311 (2007) (once a claim is granted, additional notice is not required)
- Mason v. Principi, 16 Vet. App. 129 (2002) (application of law to undisputed facts may obviate discussion of duties to notify and assist)
- Browder v. Brown, 5 Vet. App. 268 (1993) (law of the case doctrine)
- Johnson v. Brown, 7 Vet. App. 25 (1994) (law of the case precludes reconsideration of identical issues)
- McCall v. Brown, 6 Vet. App. 215 (1994) (doctrine preventing relitigation of settled issues)
- Kori Corp. v. Wilco Marsh Buggies & Draglines, 761 F.2d 649 (1985) (principles underlying law of the case doctrine)