09-20 354
09-20 354
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served in USMC, Mar 1966–Feb 1968, including Vietnam; filed multiple VA appeals beginning from a Nov 2007 RO decision.
- Service records show a March 1967 hospitalization for back contusion and subsequent chronic low back pain; placed on a permanent profile during service.
- Post-service records and exams diagnosed lumbar degenerative disc disease and degenerative joint disease; VA exams (2011, Jan 2015) opined against service nexus based on function and work history.
- Veteran credibly and consistently reported recurrent low back pain since the in-service injury and testified to symptom continuity (competent lay testimony).
- Board granted service connection for lumbar spine degenerative disc disease and degenerative joint disease under the benefit-of-the-doubt rule; remanded remaining claims (peripheral vascular disease, heart disorder, prostate disorder, increased diabetes rating, and TDIU) for additional development and clarifying VA opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for lumbar spine disorder | Back injury in service caused ongoing back disability; continuous symptoms since service | VA examiners: no provable etiology in service; functional work history inconsistent with persistent service-connected disability | Granted service connection for lumbar degenerative disc disease and DJD (benefit of the doubt based on credible lay testimony and equipoise) |
| Service connection for peripheral vascular disease (R/L LE) | PVD exists and may be related/secondary to service‑connected diabetes | Jan 2015 VA exam found no history/diagnosis; evidence of CAD/hypertension exists but nexus not established | Remanded for new/clarifying exam and opinion addressing prior records and possible secondary service connection to diabetes/PTSD |
| Service connection for heart disorder | Veteran has heart disease/coronary artery disease possibly related to service or secondary to diabetes | Jan 2015 VA exam found no objective heart condition; record contains diagnoses suggesting otherwise | Remanded for addendum/new exam to resolve factual inconsistencies and address secondary causation to diabetes/PTSD |
| Service connection for prostate disorder (BPH/chronic prostatitis) | Current prostate disorder related to in‑service prostatitis and possibly to diabetes/PTSD or herbicide exposure | Jan 2015 exam concluded no link to diabetes/Agent Orange/PTSD and stated no in‑service diagnosis (contradicted by service record) | Remanded for clarifying opinion that considers documented in‑service prostatitis and addresses nexus/aggravation theories |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (treats competent lay testimony on continuity of symptomatology)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (elements required to establish service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limits on lay competence for certain medical diagnoses)
- Reonal v. Brown, 5 Vet. App. 458 (Vet. App. 1993) (examiner must base opinions on correct factual premises)
- Layno v. Brown, 6 Vet. App. 465 (Vet. App. 1994) (veteran competent to report onset and symptoms)
- Kahana v. Shinseki, 24 Vet. App. 428 (Vet. App. 2011) (case‑by‑case determination of lay competence)
- Hickson v. West, 12 Vet. App. 247 (Vet. App. 1999) (service‑connection evidence standards)
- Harris v. Derwinski, 1 Vet. App. 180 (Vet. App. 1991) (TDIU interrelation with other claims)
- Tyrues v. Shinseki, 23 Vet. App. 166 (Vet. App. 2009) (intertwined claims doctrine)