10-45 118
10-45 118
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served 1958–1978; service connection granted in Aug 2008 for sinusitis (initially 0%) and for hypertension with erectile dysfunction (ED) (0%), plus SMC for loss of use of a creative organ.
- Multiple RO and Board actions: remands (2014–2016), Joint Motion for Partial Remand to Court on sinusitis in June 2016, and subsequent VA development including a Sept 2016 exam and Oct 2016 30% grant effective Sept 8, 2016; Veteran still seeks higher sinusitis rating.
- Hypertension/ED claim: continuous antihypertensive medication, most clinic readings well below schedular thresholds for a compensable rating; ED compensated via SMC and shows no penile deformity.
- VA examinations (2008, 2010, 2015, Sept 2016) and private records reviewed; VA concluded exams were adequate and VA met duty to assist; Veteran waived remaining time to supply outstanding records.
- Board concluded evidence preponderates against a compensable schedular rating for hypertension with ED and denied a compensable rating; sinusitis claim remanded for a compliant exam addressing loss of taste/smell and symptom differentiation from rhinitis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sinusitis rating should be increased (and whether separate rating for loss of smell/taste is warranted) | Veteran contends symptoms, including chronic loss of taste/smell and frequent sinus episodes, support higher or separate rating | VA: remand for further development; existing Sept 2016 exam was nonresponsive on smell/taste and symptom differentiation | Remanded to AOJ for compliant exam and readjudication (exam must address smell/taste and distinguish rhinitis vs sinusitis) |
| Whether a compensable schedular rating is warranted for hypertension with ED | Veteran argues higher rating based on elevated systolic/diastolic readings and long‑term need for medication | VA: record shows predominantly systolic/diastolic below compensable thresholds; ED lacks penile deformity and is compensated by SMC; VA met duty to assist | Denied: preponderance of evidence shows criteria for compensable rating not met; no extraschedular referral required |
Key Cases Cited
- Stefl v. Nicholson, 21 Vet. App. 120 (exam adequacy standard)
- Bryant v. Shinseki, 23 Vet. App. 488 (DRO hearing duties to explain issues and suggest evidence)
- Thun v. Peake, 22 Vet. App. 111 (extraschedular referral threshold)
- Johnson v. McDonald, 762 F.3d 1362 (TDIU and combined effects analysis)
- Stegall v. West, 11 Vet. App. 268 (remand compliance requirement)