10-32 158
10-32 158
| Board of Vet. App. | Jun 30, 2017Background
- Veteran served on active duty 1986–1987 and 1996–2007, with two Iraq deployments; awarded Purple Heart and Combat Action Badge.
- Multiple service-connected conditions on appeal: GERD with IBS; lumbar spine degenerative joint disease; left-hand scar and retained shrapnel; right foot plantar fasciitis with heel spur and fractured fourth toe; residuals of right ankle fracture; PTSD.
- Appeal originated from a March 2009 RO rating decision; case before the Board after an April 2016 remand that required a local RO hearing and readjudication.
- Veteran later withdrew request for a personal hearing (October 2016); the RO failed to readjudicate claims or issue a supplemental statement of the case as ordered in the April 2016 remand.
- Many VA examinations are outdated (last full exams in 2010; incomplete or older exams in 2011); record indicates possible worsening of disabilities since exams.
- Board concluded VA failed to comply with prior remand and therefore REMANDED the appeal for further development, examinations, records gathering, and issuance of an SSOC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Rating >10% for GERD with IBS | Veteran contends severity warrants higher rating | VA relies on existing ratings and prior exams | Remanded for updated VA exam and readjudication |
| 2. Rating >10% for lumbar spine DJD | Veteran alleges increased severity and functional loss | VA relies on earlier exam findings | Remanded for new examination and readjudication |
| 3. Compensable rating for left-hand scar | Veteran seeks compensable evaluation | VA record lacked completed 2011 exam and did not adjudicate | Remanded for exam and readjudication |
| 4. Compensable rating for right foot (plantar fasciitis/heel spur/fractured toe) pre-11/15/2011 and >10% thereafter | Veteran asserts condition was compensable and worsened | VA relies on earlier ratings/exams | Remanded for updated exam and readjudication |
| 5. Compensable rating for residuals of right ankle fracture | Veteran seeks compensable rating | VA relies on existing record/exams | Remanded for exam and readjudication |
| 6. PTSD rating >50% before 12/27/2011 and >70% after | Veteran asserts increased symptom severity | VA relied on prior PTSD exam(s) | Remanded for updated psychiatric examination and readjudication |
| 7. Rating >10% for retained shrapnel of left thenar eminence | Veteran seeks higher rating | VA record contains incomplete 2011 exam and no adjudication | Remanded for exam and readjudication |
All issues: Board found prior remand not complied with and ordered additional development; no merits decision made — remand only.
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (VA must comply with Board remand directives)
- Snuffer v. Gober, 10 Vet. App. 400 (1997) (remand may require new medical examinations when condition may have changed)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence after remand)