06-00 165
06-00 165
Board of Vet. App.Jun 15, 2017Background
- Veteran served active duty July 1969–Feb 1977 with service in the Republic of Vietnam (Jan–Dec 1970); he alleges respiratory disease from herbicide (Agent Orange) exposure.
- Prior administrative and judicial history: Board denied lung claim and skin claims in July 2013; CAVC vacated and remanded the lung and skin issues in Dec 2014 for further development. Several other claims were previously adjudicated or abandoned by the Veteran.
- VA examinations: An early (2011) VA exam was found inadequate. A July 2016 VA examiner diagnosed asthma and COPD and opined against a service nexus (did not address herbicide exposure). A January 2017 private physician opined that Agent Orange exposure could have contributed to the Veteran’s COPD with supporting rationale.
- The Board found the evidence in equipoise as to a nexus between the Veteran’s lung disability and presumed herbicide exposure and resolved doubt in the Veteran’s favor.
- Result on lung claim: Service connection for COPD granted. Remaining issues (tinea pedis/onychomycosis increased rating; increased ratings and effective dates for bilateral lower-extremity peripheral neuropathy; TDIU prior to April 29, 2013) were remanded for additional development and new VA examinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for lung disability (COPD, pneumonia, asthma) | Veteran: COPD and other lung disability caused or contributed to by herbicide (Agent Orange) exposure in Vietnam; private physician supports nexus | VA: July 2016 examiner found less likely than not related to service (no chronic symptoms in service or within 1 year post-discharge); initial VA exam inadequate | Granted — Board found evidence at least in equipoise on nexus to herbicide exposure and resolved doubt in Veteran’s favor, awarding service connection for COPD |
| Initial compensable evaluation for tinea pedis and onychomycosis | Veteran: seeks compensable rating (increased rating) | VA: denied previously; exam scheduling/attendance issues | Remanded — new VA skin exam to be scheduled and SSOC promulgated due to prior noncompliance and good cause for missed exam |
| Increased ratings and earlier effective dates for bilateral lower-extremity peripheral neuropathy | Veteran: ratings and effective dates should be increased/earlier based on worsening symptoms and TDIU claim | VA: last VA exams in 2013; RO increased to 20% effective April 29, 2013; evidence suggests possible worsening but needs updated exam | Remanded — new VA peripheral neuropathy exams ordered; increased-rating and effective-date/TDIU issues deferred/intertwined and held pending exam results |
| Entitlement to TDIU prior to April 29, 2013 | Veteran: unemployability due to service-connected conditions prior to April 29, 2013 | VA: premature to decide while increased-rating claims remain under development | Remanded/Deferred — intertwined with increased-rating claims; decision deferred until after development |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements required for service connection)
- Caluza v. Brown, 7 Vet. App. 498 (Vet. App.) (claims must show current disability, in-service event, and nexus)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir.) (absence from presumptive list does not bar other evidence linking disability to herbicide exposure)
- Snuffer v. Gober, 10 Vet. App. 400 (Vet. App.) (VA must provide VA examinations when necessary to decide claims)
- Harris v. Derwinski, 1 Vet. App. 180 (Vet. App.) (intertwined issues may be deferred until related claims are resolved)
- Stegall v. West, 11 Vet. App. 268 (Vet. App.) (remand orders must be complied with by the AOJ)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App.) (appellant may submit additional evidence on remand)