09-25 019
09-25 019
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served multiple periods (1993–1997; 1999–2000; 2004–2006) and appealed VA RO decisions denying or limiting benefits related to low back, right shoulder, migraines, peripheral neuropathy (sciatic), knees, PTSD, and reopening left shoulder.
- Administrative history: initial RO decision (Oct 2007), Board hearings (Aug 2013), remands (Dec 2013, Mar 2016), additional VA exams (notably Aug 2014 spine and peripheral nerve exams), and later VA readjudication and statements by the Veteran and counsel.
- Medical record: chronic lumbosacral strain with pain, objectively measured forward flexion generally >60° (Aug 2014 flexion 75° with pain), repetitive-use losses of ~5–10°, IVDS with clinician-reported 6+ weeks of incapacitating episodes in past year (but no physician-prescribed bed rest documented), right sciatic neuropathy, right shoulder post-rotator cuff repairs with limited motion on flare/with repetitive use, and frequent debilitating migraines.
- Procedural/claims posture: Board remanded PTSD, left/right knee service-connection claims and left shoulder reopening issue for issuance of a Statement of the Case (SOC) because VACOLS showed the appeal closed without evidence the Veteran withdrew; those matters were remanded to the AOJ.
- Board determinations: denied increased (>10%) rating for recurrent lumbosacral strain; granted TDIU from March 29, 2006 (based on combined ratings and the evidence of unemployability due to migraines and orthopedic conditions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence re: left shoulder reopening | Counsel asserted new evidence warranted reopening (treatment/records) | RO had denied reopening; procedural requirement unmet | REMANDED to AOJ for SOC and further development if appealed |
| Entitlement to service connection for PTSD and bilateral knee strains | Veteran sought service connection; asserted evidence supports claims | RO denied service connection in May 2014 | REMANDED to AOJ for SOC and further development if appealed |
| Increased rating >10% for recurrent lumbosacral strain | Veteran and counsel argued greater functional loss, flare-ups, incapacitating episodes, and pain justify higher or extraschedular rating | VA relied on objective ROM measurements, lack of physician-prescribed bed rest for IVDS, and no motor deficits; current schedular criteria adequately describe disability | DENIED — rating remains 10% under DC 5237; no extraschedular referral warranted (also moot given grant of TDIU) |
| Entitlement to TDIU and its effective date | Counsel argued TDIU from March 29, 2006 (post-separation) based on migraines, orthopedic limits, SSA award, and inability to work since separation | VA previously awarded TDIU effective Aug 15, 2014; challenge is earlier effective date | GRANTED — TDIU awarded from March 29, 2006 (Board found combined ratings met schedular criteria and evidence reasonably balanced that service-connected conditions precluded substantially gainful employment) |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (duty to comply with Board remand)
- Scott v. McDonald, 789 F.3d 1375 (VA's duties to notify and assist satisfied absent identified shortcomings)
- Correia v. McDonald, 28 Vet. App. 158 (range-of-motion testing requirements under VA regs)
- DeLuca v. Brown, 8 Vet. App. 202 (functional loss and pain consideration under Secs. 4.40/4.45)
- Thun v. Peake, 22 Vet. App. 111 (three-step extraschedular TDIU analysis)
- Rice v. Shinseki, 22 Vet. App. 447 (TDIU may be reasonably raised by the record)
- Johnson v. McDonald, 762 F.3d 1362 (§3.321(b) gap-filling/extraschedular purpose)