10-48 562
10-48 562
| Board of Vet. App. | Feb 2, 2017Background
- Veteran served in the Air Force (May 1972–May 1977) and asserted service‑connection for lumbar and cervical spine, bilateral shoulders, and left knee conditions, citing strenuous firefighter duties in service.
- Earlier (1977) VA action denied service connection for spina bifida occulta; that decision was final and not appealed. In Jan 2008 the Veteran claimed degenerative disc disease and also sought to reopen the 1977 back claim.
- The Board previously denied the claims (Apr 2015); the Court of Appeals for Veterans Claims vacated and remanded (Aug 2016), finding the Board did not adequately address adequacy of the May 2014 VA exam or the scope/rigor of the Veteran’s firefighting duties.
- The record contains mixed evidence: in‑service treatment notes and a discharge exam showing no reported orthopedic problems, post‑service records documenting chronic neck/back pain and falls in the 1980s–2000s, and multiple medical opinions including a November 2016 positive nexus opinion (incomplete copy) from Dr. W.G.
- The Board found the Veteran’s Jan 2008 claim for degenerative disc disease is an original claim (degenerative disc disease is a distinct diagnosis from spina bifida occulta) but concluded the Veteran also sought to reopen the 1977 spina bifida occulta claim; the AOJ must determine whether new and material evidence was submitted to reopen that claim.
- Because the May 2014 VA orthopedic opinion was found potentially inadequate and factual questions remain about in‑service duties and conflicting records, the Board remanded for further development, including obtaining personnel records, VA/private treatment records, a complete copy of Dr. W.G.’s opinion, and a new orthopedic examination and nexus opinion that addresses service duties and reconciles prior opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — lumbar spine (and whether 1977 spina bifida occulta claim was reopened) | Veteran: current lumbar/cervical/shoulder/knee conditions caused or aggravated by military firefighting duties; also seeks reopening of 1977 spina bifida claim | VA/Board: prior 1977 denial of spina bifida occulta was final; Jan 2008 claim primarily asserts degenerative disc disease (a distinct diagnosis); AOJ must determine reopening; prior VA exam may be adequate | Remanded: AOJ to determine reopening of 1977 spina bifida claim; new orthopedic exam required to opine on nexus for lumbar condition and relation to service duties; further development ordered |
| Service connection — cervical spine | Veteran: cervical DDD related to service and firefighting duties | VA/Board: existing opinions (including May 2014) were relied on but Court found exam potentially inadequate and lacking consideration of firefighting duties | Remanded for new orthopedic exam addressing in‑service duties and reconciling prior opinions before adjudication |
| Service connection — right and left shoulders | Veteran: bilateral shoulder conditions result from firefighting duties | VA/Board: existing medical opinions weighed but factual basis (duties, exam adequacy) not adequately addressed | Remanded for orthopedic specialist opinion considering duties and reconciling prior medical evidence |
| Service connection — left knee | Veteran: left knee condition due to service-related activity | VA/Board: no adequate nexus opinion in the record (prior opinions inconsistent or incomplete) | Remanded for orthopedic examination and opinion; AOJ to obtain outstanding records and re‑adjudicate |
Key Cases Cited
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a veteran’s claim is for symptoms regardless of diagnostic label)
- Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (claims based on distinctly different diagnoses have different factual bases)
- Velez v. Shinseki, 23 Vet. App. 199 (2009) (if a new claim is not based on a distinct diagnosed disease, VA must evaluate whether new evidence tends to substantiate elements of the prior adjudicated matter)
- Jones v. Shinseki, 23 Vet. App. 382 (2011) (examiner must explain inability to provide opinion rather than resort to speculation; indicate whether additional evidence could enable opinion)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran may submit additional evidence and argument after remand)