10-09 570
10-09 570
| Board of Vet. App. | May 31, 2016Background
- Veteran served May 1966–May 1969, including service in the Republic of Vietnam; presumed exposure to herbicides (Agent Orange).
- Multiple RO decisions: prior denials (notably Nov. 2004) became final; appeals and later development followed (remand in 2013; exams obtained).
- Veteran sought reopening of claims for hypertension and osteoarthritis (right knee, hands, neck, back), and service connection for hearing loss, tinnitus, respiratory disorder (emphysema/COPD), prostate cancer; also requested higher PTSD rating and earlier TDIU effective date.
- Medical record: post-service diagnoses of osteoarthritis, hypertension (diagnosed post-2001), COPD/emphysema with smoking history, right-ear hearing loss and tinnitus, and psychiatric disorders including PTSD; mixed GAF scores and several substance-related psychotic episodes.
- Procedural outcome: Board reopened hypertension claim and granted service connection for right-ear hearing loss and tinnitus; denied reopening/claims for osteoarthritis, left-ear hearing loss, respiratory condition, and prostate cancer; awarded 70% PTSD prior to May 22, 2012 (no higher) and denied earlier TDIU effective date than July 31, 2003. Hypertension and heart claims remanded for VA examination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence reopens hypertension claim | Veteran argues new evidence (post-2004 records, NAS IOM 2010) links hypertension to service/Agent Orange | RO argued evidence is either cumulative or irrelevant to in-service incurrence | Reopened (NAS 2010 creates suggestive association; remanded for exam) |
| Whether new and material evidence reopens osteoarthritis claims (knee, hands, neck, back) | Veteran cites post-service treatment and lay statements of in-service knee injury | RO contends records are cumulative/redundant and prior denial became final | Not reopened (evidence not material) |
| Service connection for respiratory disease (COPD/emphysema), including secondary to herbicide exposure | Veteran contends respiratory disease caused/related to in-service herbicide exposure | RO/Board note no in-service evidence, smoking history, treating clinicians relate disease to tobacco; COPD/emphysema not on presumptive herbicide list | Denied (no competent medical nexus; not presumptively related) |
| PTSD rating higher than 50% before May 22, 2012 and >70% thereafter | Veteran seeks earlier and higher ratings; claims total occupational/social impairment | RO/Board emphasize exam findings, GAFs, and that hospitalizations tied to substance abuse, not PTSD alone | 70% granted prior to May 22, 2012; no rating above 70% at any time (100% denied) |
Key Cases Cited
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App. 2006) (low threshold for remand/examination where an indication of service connection exists)
- Shade v. Shinseki, 24 Vet. App. 110 (Vet. App. 2010) (standard for "new and material" evidence to reopen claims)
- Hensley v. Brown, 5 Vet. App. 155 (Vet. App. 1993) (service connection may be established by showing current disability causally related to service even if separation audiograms were normal)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (service connection may be shown by proof of actual direct causation when presumptive criteria do not apply)
- Shinseki v. Sanders, 129 S. Ct. 1696 (U.S. 2009) (claimant must show prejudice from any VCAA notice deficiency)
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (once service connection is granted, notice defects are not prejudicial)