07-19 558
07-19 558
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served 1977–1978 and 1980–1984 and appealed multiple VA rating/denial decisions to the Board of Veterans' Appeals.
- Current Board decision addresses: increased rating for service‑connected residual right thumb fracture; reopening claims for right-hand middle fingers and right hip; and remands several other issues to the RO (lumbar spine, right leg secondary claim, dermatologic rating reduction, and TDIU).
- The RO previously denied service connection for the two middle right-hand fingers (March 2008) and for a right hip condition (June 2010); those decisions became final because the veteran did not timely perfect appeals.
- VA provided a November 2013 VA examination for the right thumb; examiner found a gap <1 inch and no functional loss attributable to the service‑connected thumb fracture (some limitations attributed to non‑service‑connected carpal tunnel).
- The Board denied an increased rating above 10% for the right thumb and concluded the evidence submitted since the final denials for the two middle fingers and right hip is not new and material to reopen those claims.
- The Board remanded the lumbar spine reopening issue, the right‑leg secondary claim (inextricably intertwined with the lumbar spine claim), the dermatologic reduction appeal, and held TDIU in abeyance pending resolution of the other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Increased rating for residual right thumb fracture | Thumb function is worse and always cold; seeks >10% rating | VA: exam shows gap <1 inch, no functional loss from the service‑connected fracture; limitations mostly from non‑service‑connected carpal tunnel | Denied — rating remains 10% (no gap >2 inches, no additional functional loss) |
| Reopen claim: injury to two middle fingers, right hand | Finger injury in service (lifting incident); seeks service connection reopened | VA: March 2008 denial became final; post‑decision evidence does not establish in‑service injury or current disability related to service | Not reopened — new evidence is not material (does not raise reasonable possibility) |
| Reopen claim: right hip condition | Hip pain/arthralgia related to service | VA: June 2010 Board denial is final; post‑decision records do not show service connection or a right hip condition within one year of separation | Not reopened — new evidence is not material |
| Remanded and inextricably intertwined matters: lumbar spine reopening; right leg (lipoma, radiculopathy) secondary to spine; reduction of tinea versicolor/folliculitis; TDIU | Veteran seeks reopening and adjudication; right leg claim alleged secondary to spine; disputes rating reduction and seeks TDIU | VA: RO has not issued required Statements of the Case on some timely NODs; further development required before Board can adjudicate | REMANDED to AOJ for development (issue SOCs, readjudication); TDIU held pending outcomes |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (requirements for adequacy of VA medical examinations and opinions)
- Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (veteran/representative may not object to adequacy of exam to preserve issue)
- Soyini v. Derwinski, 1 Vet. App. 540 (1991) (VA development duties and when additional development is unnecessary)
- Shade v. Shinseki, 24 Vet. App. 110 (2010) (low threshold for reopening -- "reasonable possibility" standard)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings guidance)
- Manlincon v. West, 12 Vet. App. 238 (1999) (Board must remand when RO fails to issue a Statement of the Case after a timely NOD)
- Yancy v. McDonald, 27 Vet. App. 484 (2016) (extraschedular discussion not required unless raised)
- Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007) (harmless error doctrine in veterans benefits adjudication)
- Friscia v. Brown, 7 Vet. App. 294 (1995) (duty to obtain exam/opinion addressing effect of service‑connected disabilities on employability)