09-42 839
09-42 839
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served on active duty for training Nov 1981–Apr 1982 and alleges injuries (truck-related fall in Jan 1982) causing low back and neck disabilities and mental-health symptoms from an in-service altercation.
- RO initially denied service connection for low back in January 1990; that decision became final after no timely appeal or new evidence within one year.
- Veteran filed claims to reopen bilateral knee and low back claims and sought service connection for neck, right shoulder, and psychiatric disorder (including PTSD/depression); earlier Board remanded in Dec 2013 for additional development.
- New evidence submitted after the 1990 final denial includes lay statements and a Feb 1, 1982 service treatment record referencing a truck-related injury; private records document current lumbar and cervical diagnoses and psychiatric treatment.
- Board found the post-1990 evidence is new and material as to the low back claim and granted reopening; remanded claims for VA examinations for low back, neck, and psychiatric conditions and for further record collection; right shoulder claim pending due process steps.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reopen low back service-connection claim (final 1990 denial) | New lay statement and 1982 STR show in-service injury linking current back condition to service | 1990 denial was final; reopening requires new and material evidence | Reopened: new evidence raises reasonable possibility of substantiating nexus to service |
| Reopen bilateral knee claims | Veteran seeks reopening based on new evidence (generally argued with other MSK claims) | RO previously denied; reopening threshold not clearly met in record yet | Remanded for development (records procurement) — not decided on merits here |
| Service connection for psychiatric disorder (including PTSD/depression) | Veteran reports in-service altercation with lasting nightmares and private records show current diagnoses | RO previously denied; further development needed to evaluate nexus | Remanded: VA exam ordered to assess current diagnosis and nexus to service |
| Service connection for neck and right shoulder | Veteran reports neck injury from Jan 1982 fall; right shoulder denial appealed via NOD (May 2012) | RO has not completed development or issued SOC for shoulder; neck needs nexus development | Remanded: VA exams ordered for neck; SOC/statement of case required for right shoulder before Board action |
Key Cases Cited
- Wakeford v. Brown, 8 Vet. App. 239 (discusses standard for reopening claims)
- Justus v. Principi, 3 Vet. App. 510 (presumption of credibility for evidence submitted to reopen)
- Shade v. Shinseki, 24 Vet. App. 110 (low threshold for evidence that raises reasonable possibility to substantiate claim)
- Stegall v. West, 11 Vet. App. 268 (remand orders must be substantially complied with)
- McLendon v. Nicholson, 20 Vet. App. 79 (VA duty to provide examination when evidence indicates possible nexus)
- Locklear v. Nicholson, 20 Vet. App. 410 (low threshold for showing link between current disability and service)