10-47 292
10-47 292
Board of Vet. App.Aug 31, 2017Background
- Veteran served on active duty Sept 1980–Dec 1985 and was discharged for severe right knee chondromalacia patella; limited left-knee findings in service but normal ROM and no Medical Board finding of left knee disorder.
- First claim for left knee filed May 1996; no documented treatment for left knee after separation until reported symptoms in 2007.
- Service-connected right knee rated 10% throughout appeal period; no single service-connected disability rated at 60% or combined ratings meeting TDIU thresholds.
- VA obtained multiple medical examinations; a February 2017 VA opinion found left-knee arthritis less likely than not related to service and not caused/aggravated by the right knee.
- Social Security records show the Veteran stopped working May 21, 2010 due to back injury and SSA found disability from lumbar DDD and bilateral knee OA; VA evidence showed other nonservice-connected conditions contributed to unemployability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — left knee (direct or secondary) | Left knee arthritis is related to service or aggravated/caused by service‑connected right knee | Left knee symptoms did not manifest in service or within one year after separation and medical opinion shows no nexus to service or to right knee | Denied — no service connection (direct or secondary) |
| Entitlement to TDIU | Right knee alone renders him unemployable | Right knee rated only 10%; unemployability attributable to several nonservice‑connected conditions; does not meet schedular thresholds or warrant extraschedular referral | Denied — not entitled to TDIU; no extraschedular referral warranted |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand compliance requirement)
- Allday v. Brown, 7 Vet. App. 517 (1995) (Board reasons or bases requirement)
- Gonzales v. West, 218 F.3d 1378 (2000) (Board not required to discuss every piece of evidence)
- Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (scope of Board discussion of evidence)
- Timberlake v. Gober, 14 Vet. App. 122 (2000) (addressing rejection of favorable evidence)
- Scott v. McDonald, 789 F.3d 1375 (2015) (issue exhaustion and Board obligations)
- Dickens v. McDonald, 814 F.3d 1359 (2016) (application of Scott to duty to assist and hearing defects)
- Bryant v. Shinseki, 23 Vet. App. 488 (2010) (requirements for Board hearing duties)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule)