05-34 163
05-34 163
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served May 1971–May 1973; service records show stateside radio operator duty with no recorded combat or foreign/sea service.
- Administrative history: initial final denial of left upper extremity nerve damage in Jan 2007; multiple remands, exams (2011, 2016), and appellate proceedings including a Court remand (Joint Motion) in 2009.
- Claims on appeal: (1) reopen nerve damage claim; (2) service connection for acquired psychiatric disability (including PTSD); (3) service connection for chronic pain; (4) increased rating (>30%) for service‑connected degenerative joint disease of left shoulder; (5) TDIU based solely on that shoulder disability.
- Key factual findings: post‑service records and exams do not show a diagnosable nerve injury attributable to service (Veteran refused EMG/partially refused exam); alleged in‑service stressors (Vietnam/Guantanamo/SEAL missions) are inconsistent with service records and found not corroborated or credible.
- Medical evidence shows left shoulder degenerative joint disease with recurrent dislocations and pain, but objective findings (motor strength, no flail, no nonunion, no marked deformity) support a 30% evaluation; VA opinions found capability for at least sedentary/light work.
Issues
| Issue | Plaintiff's Argument (Veteran) | Defendant's Argument (VA) | Held |
|---|---|---|---|
| Reopen nerve damage claim (left upper extremity) | Newly submitted records, lay statements, and hearings show ongoing neuropathic symptoms tied to service | New evidence is cumulative/redundant; no current diagnosis attributable to service; Veteran refused needed testing (EMG) | Denied — evidence not new and material; prior 2007 denial remains final |
| Service connection for psychiatric disability (including PTSD) | PTSD from alleged in‑service combat/secret missions in Vietnam and other stressors | Alleged stressors are inconsistent with service records, incapable of corroboration; medical exams do not diagnose PTSD | Denied — no corroborated in‑service stressor and no current service‑connected psychiatric disorder |
| Service connection for chronic pain | Chronic multi‑joint pain began in service or from side effects of prescribed pain medication | No in‑service complaints or continuity of symptomatology proven; no identified diagnosis linking pain to service or meds | Denied — no current disability shown attributable to service |
| Increased rating for left shoulder (>30%) | Shoulder is far more limiting (cannot raise arm, severe pain, frequent dislocations) | Objective exams show preserved strength, no flail/nonunion/marked deformity; current manifestations align with 30% criteria | Denied — criteria for >30% not met (30% affirmed) |
| TDIU based solely on left shoulder disability | Shoulder disability prevents securing/maintaining substantially gainful employment | Combined evaluation is 30%; medical opinions indicate ability for sedentary/light work; other non‑service disabilities relied on in earlier opinion | Denied — not shown unable to pursue substantially gainful employment due solely to the service‑connected shoulder |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (addresses appellate status when not seeking maximum rating)
- Stegall v. West, 11 Vet. App. 268 (remand duties and substantial compliance with Board remand directives)
- Shade v. Shinseki, 24 Vet. App. 110 (standard for reopening claims under post‑VCAA §3.156(a))
- Buie v. Shinseki, 24 Vet. App. 242 (effect of statements within one year on finality and reopening analysis)
- Justus v. Principi, 3 Vet. App. 510 (credibility presumption for new evidence in reopening analysis)
- Stefl v. Nicholson, 21 Vet. App. 120 (requirements for a medical opinion to be adequately supported for rating/TDIU analysis)