10-31 764
10-31 764
| Board of Vet. App. | Jun 30, 2016Background
- Veteran served on active duty Apr 1962–Apr 1964; appeal from San Diego RO decisions; hearing held Mar 2015; remand in Jun 2015 and further development in Aug 2015 exams.
- Claims on appeal: increased rating for service‑connected skin disorder; service connection for chest/rib condition (accessory pectoralis major); gastrointestinal disorder; low back disorder; bilateral hearing loss.
- August 2015 VA exams: diagnosed residual intercostal bursitis/fibrosis (chest), degenerative arthritis of the spine (low back), mixed findings for skin and GI with unclear nexus, and audiology testing showing hearing loss meeting VA criteria in right ear but not left.
- Board granted service connection for chest disorder (residual intercostal bursitis/fibrosis) based on nexus to in‑service treatment and exam opinion; granted service connection for chronic low back disorder based on continuity of symptomatology since service and equivocal/contradictory post‑service evidence resolved in claimant's favor.
- Board denied service connection for hearing loss (overall): left ear not a disability under 38 C.F.R. § 3.385; preponderance of evidence against service nexus for right ear given normal separation exams, long gap to onset, and persuasive negative nexus opinions from VA examiners.
- Board REMANDED skin‑rating and gastrointestinal claims for clarification: (1) whether medications used for skin disorder are systemic corticosteroids or similar (affecting rating under DC 7806); (2) clearer rationale on GI etiology and whether GI is secondary‑aggravated by skin disorder or its treatments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rating >30% for service‑connected skin disorder | Skin involvement and medication use justify >30% rating (systemic therapy) | RO relied on prior exams showing <30% or unclear systemic therapy | REMANDED for clarification whether treatments are corticosteroids/like drugs and frequency; rating undecided |
| Service connection — chest/rib disability | Chest mass/pain began in service; attributable to in‑service findings | RO previously denied for lack of clear diagnosis linking to service | GRANTED: residual intercostal bursitis/fibrosis service‑connected based on in‑service treatment and August 2015 exam nexus |
| Service connection — gastrointestinal disorder (GERD) | GI symptoms related to service or secondary to skin treatment | August 2015 examiner gave inconsistent/ambiguous opinions; RO denied | REMANDED for clarified nexus opinion and secondary‑aggravation analysis |
| Service connection — low back disorder | Low back pain began in service (carrying heavy loads); continued post‑service | RO relied on past findings that in‑service complaints were acute/transitory | GRANTED: continuity of symptomatology and mixed evidence in equipoise; benefit of doubt to veteran |
| Service connection — bilateral hearing loss | In‑service noise exposure and early post‑service complaints support nexus | Separation exams normal; long gap to disability; VA examiners opine against service nexus | DENIED: left ear not a VA disability; preponderance against service nexus for right ear; negative examiner opinions persuasive |
Key Cases Cited
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (lay evidence can establish diagnosis or etiology in certain circumstances)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competence of lay evidence assessed case‑by‑case)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt/evidence in equipoise rule)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (2008) (criteria for evaluating probative value of medical opinions)
- Allen v. Brown, 7 Vet. App. 439 (1995) (standards for secondary service connection/aggravation)
- Hensley v. Brown, 5 Vet. App. 155 (1993) (requirements for establishing hearing loss service connection absent compensable separation thresholds)
- Alemany v. Brown, 9 Vet. App. 518 (1996) (definite etiology not required for service connection when evidence supports nexus)
- Quirin v. Shinseki, 22 Vet. App. 390 (2009) (application of congenital defect rules under 38 C.F.R.)