09-09 325
09-09 325
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served active duty 1968–1972 and 1977–1980; appeal from RO decisions denying multiple service-connection and rating issues.
- Veteran has current combined 100% rating (effective July 28, 2009) and SMC for loss of use of a creative organ.
- Board previously remanded several issues (May 2015); additional development produced VA exams (2016) and a May 2016 RO grant for sleep apnea (50%, effective Oct 26, 2006) and tibial tendon dysfunction (10%, effective Aug 2, 2006).
- Veteran sought service connection for pes planus, bilateral retinal detachment, left ankle arthritis; higher/compensable ratings for bilateral trigger fingers/Dupuytren’s; and earlier effective date for chloracne.
- Board received VA exam evidence (2010, 2012, 2016) and a private podiatrist opinion; Court previously vacated part of the Board’s May 2015 decision concerning chloracne effective date and remanded for further consideration.
Issues
| Issue | Veteran's Argument | VA/RO Argument | Held |
|---|---|---|---|
| Service connection — pes planus | Pes planus present at entry and worsened by service | Pre-existing condition not aggravated by service; VA exam shows no service aggravation | Denied — preponderance shows pes planus clearly & unmistakably existed pre-service and not aggravated by service |
| Service connection — bilateral detached retinas | Retinal detachments related to service and/or secondary to diabetes | No current diagnosed retinal detachment during appeal; existing evidence shows resolved past detachments | Denied — no competent evidence of current retinal detachment disability |
| Service connection — left ankle arthritis | Ongoing ankle pain and imaging suggest arthritis; possibly secondary to diabetes | Exams show tibial tendon tear (post-service) and no arthritis; left ankle symptoms rated under tibial tendon dysfunction | Denied — arthritis not documented within relevant period; pain rated under other service-connected condition |
| Increased rating — right & left trigger fingers/Dupuytren’s | Functional loss, pain, reduced grip merit compensable rating | VA exams show full ROM, no required gaps/limitations; grip 5/5; symptoms accounted for by current ratings | Denied — findings do not meet compensable criteria under DCs 5228–5230 |
| Effective date — chloracne earlier than Nov 27, 2002 | Chloracne since service; presumptive Agent Orange exposure in Vietnam qualifies for earlier effective date | RO awarded direct service connection effective Nov 27, 2002; must consider presumptive provisions and liberalizing law | Granted in part — chloracne presumptively established as of Feb 6, 1991; effective date set to Nov 27, 2001 (one year before claim) |
Key Cases Cited
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical opinions are more probative when they include a reasoned analysis linking data to conclusions)
- Jandreau v. Nicholson, 492 F.3d 1372 (2007) (limits on lay competence for medical etiology and diagnosis)
- Shedden v. Principi, 381 F.3d 1163 (2004) (elements required to establish service connection)
- Stegall v. West, 11 Vet. App. 268 (1998) (VA must substantially comply with Board remand directives)
- Walker v. Shinseki, 708 F.3d 1331 (2013) (continuity of symptomatology can establish presumptive nexus)
- McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability exist during the claims period)