10-12 558
10-12 558
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served active duty Mar 1978–Jun 1988; appealed multiple denials to the Board of Veterans' Appeals after a May 2008 RO decision.
- Prior unappealed June 2002 RO denial of service connection for hepatitis C; claimant sought to reopen that claim with additional records.
- VA developed claims per March 2016 remand: obtained SSA records, private treatment records, and VA examinations including April 2016 etiology opinions for psychiatric and left-shoulder claims.
- Current medical diagnoses in the record: hepatitis C (treated post-service), adjustment disorder with depressed mood, refractive error (congenital), hypertension, type 2 diabetes, and degenerative arthritis of the left shoulder.
- Veteran is service-connected for left and right shoulder dislocation (20% each); RO later granted service connection for right shoulder osteoarthritis (no longer before Board).
- Board found VA fulfilled VCAA duties; weighed April 2016 VA examiners’ opinions as competent and probative in denying reopening/service connection claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reopen hepatitis C claim | Veteran argues new records and continued treatment evidence reopen the June 2002 denial | VA: additional records are cumulative/redundant and do not relate to unestablished facts | Claim not reopened; evidence not new and material |
| Service connection — psychiatric disorder (adjustment disorder w/ depressed mood) | Veteran contends psychiatric disability is related to service | VA relies on April 2016 examiner and treatment records linking disorder to chronic medical illness (hepatitis C/interferon), not service | Denied; preponderance shows no nexus to service |
| Service connection — eye condition (refractive error) | Veteran asserts eye problem related to service | VA: refractive errors are congenital/developmental defects, not compensable absent superimposed disease/injury | Denied as a matter of law; refractive error is congenital and not compensable without superimposed disease |
| Service connection — hypertension | Veteran asserts hypertension began around discharge | VA: no in-service or within-one-year evidence; first diagnoses ~2001; lay assertions insufficient for medical nexus | Denied; no in-service manifestation or nexus established |
| Service connection — diabetes mellitus, type 2 | Veteran asserts diabetes related to service or herbicide exposure | VA: no herbicide exposure alleged/established; no in-service or within-one-year manifestations; first diagnosis ~2006 | Denied; neither presumptive nor direct service connection shown |
| Service connection — degenerative arthritis, left shoulder (secondary) | Veteran contends left-shoulder arthritis is related to in-service injury and/or aggravated by service-connected dislocation | VA: April 2016 opinion finds left shoulder degenerative changes not caused or aggravated by service or service-connected dislocation; gap in symptom continuity until 2007 imaging | Denied; no direct, secondary, or presumptive service connection proven |
Key Cases Cited
- Grantham v. Brown, 114 F.3d 1156 (Fed. Cir.) (grant of service connection extinguishes appeal)
- Stegall v. West, 11 Vet. App. 268 (Board must ensure remand compliance)
- Scott v. McDonald, 789 F.3d 1375 (VCAA notice/duty to notify discussion)
- Barr v. Nicholson, 21 Vet. App. 303 (adequacy of VA medical opinions)
- Justus v. Principi, 3 Vet. App. 510 (credibility presumption for new evidence when reopening)
- Shade v. Shinseki, 24 Vet. App. 110 (standard for "new and material" evidence to reopen)
- Shedden v. Principi, 381 F.3d 1163 (elements for service connection)
- Walker v. Shinseki, 708 F.3d 1331 (continuity of symptomatology limited to chronic conditions under §3.309)
- Winn v. Brown, 8 Vet. App. 510 (refractive errors not compensable absent superimposed disease)
- Beno v. Principi, 3 Vet. App. 439 (refractive error as noncompensable defect)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay evidence competency limits)
- Davidson v. Shinseki, 581 F.3d 1313 (lay opinion admissibility nuance)
- Kahana v. Shinseki, 24 Vet. App. 428 (limitations on lay medical conclusions)
- Gilbert v. Derwinski, 1 Vet. App. 49 (preponderance of evidence standard)
- Annoni v. Brown, 5 Vet. App. 463 (benefit-of-the-doubt doctrine in reopening context)