09-04 109
09-04 109
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served active duty June 2002–December 2005 (Iraq). Entry exam documented moderate asymptomatic pes planus; treated for bilateral foot pain and sesamoiditis during service.
- Post-service VA records show ongoing foot complaints and multiple diagnoses (pes planus, sesamoiditis, os trigonum, metatarsalgia, osteoarthritis, digiti quinti varus, plantar fasciitis).
- Separation exam (2005) noted bilateral plantar fascia and mild symptomatic pes planus; veteran reports foot pain since 2003.
- Separation exam and later records document at least one head injury (falls while playing sports during service) and reported post-injury headaches; various VA TBI exams reached differing conclusions.
- Veteran missed a scheduled December 2016 Board hearing without good cause; hearing request deemed withdrawn.
- Board remanded both claims for further development because prior VA medical opinions were inadequate (examiner didn’t review full claims file, failed to address lay statements, or used incorrect legal standard).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for bilateral foot disorder | Veteran: current foot disabilities (pes planus, sesamoiditis, etc.) began or were aggravated by service (PT, rucking, injuries) | VA: some conditions preexisted; August 2013 opinion concluded pes planus clearly & unmistakably preexisting and not aggravated beyond natural progression; other opinions were limited or without file review | Remanded for new, file‑reviewing exam addressing diagnoses of all foot disorders and nexus/aggravation opinions (including proper legal standard) |
| Service connection for residuals of a concussion/TBI | Veteran: in‑service head injuries/falls led to concussion and persistent headaches and other residuals | VA: prior examiners found no current TBI diagnosis or residuals; one examiner opined acute concussion likely in service but no documented sequelae | Remanded for a new exam that reviews the full file and specifically addresses veteran’s lay statements of post‑injury headaches and whether residuals are at least as likely as not related to service |
| Procedural: missed hearing & adequacy of development | Veteran: sought a hearing but did not appear; seeks favorable adjudication with full development | VA: hearing deemed withdrawn for failure to appear; VA must still fully develop claims | Board deemed hearing withdrawn and ordered extensive development (records retrieval, exams, notice obligations); claims to be readjudicated after development |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (Veterans Court) (VA examinations in service‑connection claims must be adequate)
- Stefl v. Nicholson, 21 Vet. App. 120 (Veterans Court) (medical conclusions must be accompanied by rationale)
- Dalton v. Nicholson, 21 Vet. App. 23 (Veterans Court) (examiner must consider competent lay statements and cannot reject them solely for lack of contemporaneous records)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir.) (elements required to establish service connection, including nexus)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (nexus requirement and related precedent)
- Kutscherousky v. West, 12 Vet. App. 369 (Veterans Court) (veteran may submit additional evidence after remand)
- Stegall v. West, 11 Vet. App. 268 (Veterans Court) (remand directives must be complied with by the RO)