10-33 870
10-33 870
| Board of Vet. App. | Sep 18, 2017Background
- Veteran served on active duty March 1956–March 1960 and appealed multiple RO rating decisions (Sept 2009, Oct 2011, Aug 2014).
- Claims on appeal: service connection for a bladder disability (claimed secondary to a service-connected scar from pilonidal cyst removal), increased rating for cervical degenerative joint disease with scoliosis and muscle spasm, and 38 U.S.C. § 1151 compensation for stroke residuals allegedly due to VA care prior to Feb 2011.
- Board previously remanded these claims in Jan 2015; subsequent VA examinations (Jan 2016 for bladder; Jun/Oct 2015 for §1151 stroke) failed to fully comply with remand instructions.
- Additional VA treatment records post-dating the SOC were added for the cervical claim; the Veteran declined to waive AOJ review of that new evidence.
- Board found exam reports inadequate (failed to address aggravation for bladder; failed to address foreseeability element for §1151 stroke; incomplete ROM testing per Correia/38 C.F.R. §4.59 for cervical spine) and ordered further development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for bladder disability secondary to service‑connected scar | Bladder condition is caused or at least aggravated by the service‑connected scar; prior development inadequate | VA/RO relied on prior exam but did not fully address aggravation question | Remanded for supplemental exam/opinion addressing whether service‑connected scar aggravated bladder (50%+ likelihood) and rationale |
| Increased rating for cervical spine (pre‑ and post‑6/29/2016) | Existing exams insufficient; additional treatment records show worse symptoms warranting >10% then >20% | VA/RO previously rated based on record through Aug 2014; AOJ review needed for newly submitted records | Remanded for updated records, new exam with complete active/passive, weight‑bearing and nonweight‑bearing ROM per Correia and re‑adjudication |
| 38 U.S.C. § 1151 claim for stroke residuals (pre‑Feb 2011) | Stroke was caused by VA care error or an event not reasonably foreseeable | Prior VA examinations did not address whether stroke resulted from an unforeseeable event or VA fault | Remanded for supplemental opinion addressing whether stroke was due to VA fault or an event not reasonably foreseeable (with rationale) |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (explains VA must comply with Board remand directives)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant has right to submit evidence and argument on remanded matters)
- Correia v. McDonald, 28 Vet. App. 158 (requires adequate ROM testing, including active/passive and weight‑bearing/nonweight‑bearing when appropriate)