07-26 983
07-26 983
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served active duty Mar 1997–Mar 2001 and appealed multiple VA rating decisions from 2006 and 2011 concerning musculoskeletal, neurologic, and cardiovascular conditions.
- Claims on appeal: service connection for right knee disorder (including secondary to left knee), low back disorder, migraine headaches, hypertension (including secondary to PTSD), increases for left knee tendinitis and cervical spine degenerative changes, and TDIU.
- VA provided examinations in Oct 2016 pursuant to prior Board remands, but the Board found those exams were not fully responsive to remand directives and did not comply with Correia joint-testing requirements.
- The Board found additional development necessary (new/clarifying VA opinions, full records development including private and VA treatment records, and joint testing for active/passive and weight-bearing/nonweight-bearing ROM per Correia).
- The Board ordered targeted exam instructions for right knee, low back, hypertension, migraines, left knee and cervical spine, and directed review for whether retrospective ROM estimates are possible; TDIU was held inextricably intertwined and deferred pending development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — right knee (including secondary to left knee) | Right knee condition caused by compensating for service‑connected left knee or by in‑service football injuries; STRs show right knee treatment in 1999 | Prior VA exams insufficient to establish nexus; VA requests medical opinion | Remanded for a comprehensive exam/opinion addressing diagnosis, nexus to service and to left knee, and gap in treatment rationale |
| Service connection — low back disorder | Low back pain caused by March 1999 in‑service motor vehicle accident; STRs show lumbar sprain/strain and chronic pain at separation | Prior exams inconclusive/insufficient | Remanded for exam/opinion identifying diagnoses, nexus to service/accident, and addressing significance of time gap |
| Service connection — migraine headaches | Migraines caused by in‑service head trauma (boxing, football), a 1997 assault, or 1999 MVA; STRs note migraine complaints in 2000 | Prior exam reports not fully responsive | Remanded for exam/opinion on presence, relation to service/trauma, and discussion of temporal gap |
| Service connection — hypertension (including secondary to PTSD, knee disability, meds) | Hypertension existed in service or is secondary to PTSD/medications; STRs include elevated BP; VA documented high reading in 2006 | Prior VA report found no hypertension but did not address STR/2006 elevated readings | Remanded for exam/opinion addressing manifestation in service or within one year, and possible secondary/aggravation causes |
| Increased rating — left knee tendinitis | Current severity warrants >10% based on ROM limits, pain, functional loss | Recent exams lacked Correia‑required joint testing (active/passive, weight/nonweight) | Remanded for new exam with complete ROM testing, assessment of ankylosis/instability/meniscal symptoms, and possible retrospective ROM estimates |
| Increased rating — cervical spine degenerative changes | Symptoms (including reported syncope when turning head) justify higher rating | Prior exams lacked required joint testing and full neurologic/ROM assessment | Remanded for new exam with active/passive and weight/nonweight ROM, neurologic findings, ankylosis assessment, and retrospective estimates if possible |
| TDIU | Veteran asserts unemployability due to service‑connected conditions | TDIU is tied to outcome/severity of other claims | Remanded as inextricably intertwined with the other claims pending required development |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (Board must ensure compliance with remand orders)
- Chotta v. Peake, 22 Vet. App. 80 (retroactive medical evaluations may be appropriate when evidence gap exists)
- Correia v. McDonald, 25 Vet. App. 158 (VA must test joint ROM for pain during active and passive motion and weight‑bearing and nonweight‑bearing)
- Kutscherousky v. West, 12 Vet. App. 369 (veteran retains right to submit additional evidence/argument after remand)