09-04 069
09-04 069
Board of Vet. App.Mar 31, 2017Background
- Veteran served on active duty 1988–1991; service-connected bilateral plantar fasciitis (50%); prior June 2006 RO denial of service connection for psychiatric disorders became final.
- Veteran submitted new VA psychiatric treatment records and opinions linking depressive symptoms to chronic pain from service‑connected foot disabilities.
- Veteran underwent VA left plantar fascia release on March 4, 2008; thereafter reported increased left foot pain and numbness. Post-op records show normal nerve studies and mixed clinical opinions on etiology.
- VA obtained an independent non‑VA orthopedist medical expert (IME) who concluded the claimant had increased subjective symptoms but no objective nerve injury attributable to VA fault and that the post‑op complaints were foreseeable and encompassed by informed consent.
- Board reopened the psychiatric claim, granted secondary service connection for persistent depressive disorder due to service‑connected plantar fasciitis, and denied entitlement to compensation under 38 U.S.C. § 1151 for the March 2008 surgery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Reopen psychiatric service‑connection claim | New VA psychiatric records link depression to chronic pain from service‑connected feet; therefore claim should be reopened | RO: June 2006 denial was final because no timely appeal or new evidence within one year | Reopened — new and material evidence (VA psychiatric records) presented; claim reopened |
| 2) Service connection for psychiatric disorder (secondary) | Depression is proximately due to or aggravated by service‑connected bilateral plantar fasciitis | VA initially argued no nexus in earlier record; post‑2006 records now show nexus | Granted — persistent depressive disorder service‑connected as secondary to bilateral plantar fasciitis |
| 3) Compensation under 38 U.S.C. § 1151 for post‑op injury | Surgery caused increased pain/numbness due to VA negligence or unforeseeable event | VA: IME and other VA opinions show no objective nerve injury attributable to VA fault; risks were disclosed; subjective worsening foreseeable and encompassed by consent | Denied — preponderance of evidence shows no VA fault or unforeseeable event; §1151 claim denied |
| 4) TDIU and increased rating for fibrocystic breast disease (procedural) | Veteran testified breast condition may have worsened and implicitly raised TDIU | VA/Board: further development needed (updated records, new exam, 21‑8940) | Remanded for development (obtain records, exam, 21‑8940) |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir.) (elements required to establish service connection and nexus)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (service‑connection nexus standard)
- Shade v. Shinseki, 24 Vet.App. 110 (Vet. App.) (standard for new and material evidence to reopen claim)
- Nieves‑Rodriguez v. Peake, 22 Vet.App. 295 (Vet. App.) (requirements for a probative medical opinion)
- Rice v. Shinseki, 22 Vet.App. 447 (Vet. App.) (TDIU may be reasonably raised by the record)
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (scope of Board discussion limited to relevant evidence)