08-22 614
08-22 614
| Board of Vet. App. | Jun 30, 2017Background
- Veteran served 1985, 2002–2003, and 2004–2005; appealed RO decisions from Dec 2007 and Apr 2008.
- VA previously awarded service connection for TBI (100%), PTSD (50%), mild gastritis/IBS (30%), and bilateral tinnitus (10%); remaining claims stayed on appeal.
- Claimant seeks service connection for obstructive sleep apnea (claimed as REM sleep behavior disorder), heart murmur/heart condition, GERD, and type I Chiari malformation; also seeks an initial compensable rating for bilateral hearing loss.
- Prior VA examinations (Mar 2011 with Feb 2012 addendum) addressed these conditions but lacked full file access and are over five years old; examiners concluded no chronic sleep disorder, benign pre-service heart murmur with normal echo, GERD not linked to Gulf exposures, and Chiari congenital.
- Board found previous opinions potentially inadequate given later service-connected conditions and passage of time, and determined further development (new exams/addendum opinions and updated VA records) is necessary; remanded for development and readjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — sleep apnea / REM sleep disorder | Sleep disorder began in or is related to service or secondary to service-connected conditions | Prior VA examiner found no chronic sleep disorder; normal 2008 sleep study; no opinion needed linking to psychiatric conditions | Remanded for a new/addendum exam to determine diagnosis and nexus including secondary causation if a sleep disorder is found |
| Service connection — heart murmur / heart condition | Heart condition incurred in or aggravated by service | Entrance exam showed benign systolic murmur; 2007 echo normal; prior opinion said murmur clinically insignificant | Remanded for exam/addendum to characterize murmur, determine preexistence, causation or aggravation during service |
| Service connection — GERD | GERD began in service or due to Gulf War infectious exposure or secondary to service-connected disabilities | Prior opinion diagnosed mild GERD but found no link to Gulf War exposures or infectious agents | Remanded for an addendum opinion on GERD etiology, including possible Gulf War bug exposure or secondary causation |
| Service connection — Chiari type I malformation | Chiari resulted from or was aggravated by service or service-connected disabilities | Prior opinion said Chiari congenital and not aggravated by service | Remanded for detailed opinion whether Chiari is congenital vs developmental, preexisting, and whether it was aggravated or related to service or other disabilities |
| Initial compensable rating — bilateral hearing loss | Hearing worsened since last exam; compensable rating may now be warranted | Most recent VA exam (Mar 2011) found noncompensable under Table VII; exam is not contemporaneous | Remanded to obtain a new audiological exam (records review and functional effects) because 2011 exam is outdated |
Key Cases Cited
- Caffrey v. Brown, 6 Vet. App. 377 (holding older examinations may be too remote to be considered contemporaneous)
- Snuffer v. Gober, 10 Vet. App. 400 (VA should provide a new exam when evidence suggests worsening after last exam)
- Bell v. Derwinski, 2 Vet. App. 611 (duty to obtain VA treatment records and associate with claims file)
- Kutscherousky v. West, 12 Vet. App. 369 (appellant may submit additional evidence/argument after remand)