10-48 699
10-48 699
Board of Vet. App.Oct 31, 2017Background
- Veteran served on active duty (Nov 1965–Nov 1967) and appealed VA regional office decisions from April 2008 regarding increased ratings and secondary service connection.
- During the appeal VA later granted service connection for obstructive sleep apnea and TDIU (Feb 2017); those issues are not before the Board.
- Medical record shows diagnoses of hypertension, iatrogenic hypothyroidism (on continuous medication since July 30, 2007), and a history of laryngeal carcinoma with recurrent hoarseness and later vocal cord thickening and premalignant biopsy changes.
- A March 2017 VA examiner opined that the Veteran’s hypertension was at least as likely as not proximately due to his service‑connected obstructive sleep apnea.
- Symptom chronology for hypothyroidism in the record supported increased evaluations at three periods: (1) fatigability/constipation/mental sluggishness (from July 30, 2007), (2) weight gain and mental disturbance (from July 17, 2009), and (3) cold intolerance/mental disturbance/sleepiness (from Dec 29, 2011).
- Evidence of vocal cord thickening and premalignant biopsy findings first appears in late 2008; earlier records show hoarseness without objective cord thickening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Secondary service connection for hypertension (as caused by service‑connected OSA) | Hypertension is caused by his service‑connected obstructive sleep apnea | VA relied on medical evidence; argued nexus must be supported by competent opinion | Granted — March 2017 VA examiner provided a favorable, well‑rationalized nexus opinion, so secondary service connection awarded |
| Increased initial rating for iatrogenic hypothyroidism | Hypothyroidism produces symptoms justifying ratings above 10% beginning July 30, 2007 | VA maintained 10% rating absent evidence meeting higher DC thresholds | Granted in stages — 30% from July 30, 2007; 60% from July 17, 2009; 100% from Dec 29, 2011 based on symptom progression meeting DC 7903 criteria |
| Increased rating for history of laryngeal carcinoma | Hoarseness and later findings (thickening, premalignant biopsy) warrant >10% and up to 30% effective earlier | VA argued objective cord thickening/premalignant changes documented only from Nov 1, 2008; earlier records lack required findings | Partly granted — denied >10% for July 30, 2006–Oct 31, 2008; granted maximum 30% effective Nov 1, 2008 when cord thickening and premalignant changes documented |
Key Cases Cited
- Locklear v. Shinseki, 24 Vet.App. 311 (2011) (VA may bifurcate issues such as TDIU from evaluation appeals)
- Allen v. Brown, 7 Vet.App. 439 (1995) (standards for secondary service connection)
- Wallin v. West, 11 Vet.App. 509 (1998) (elements required for secondary service connection)
- Copeland v. McDonald, 27 Vet.App. 333 (2015) (conditions listed in the rating schedule must be rated under the specific diagnostic code)
- Tatum v. Shinseki, 23 Vet.App. 152 (2009) (symptoms listed for a diagnostic code need not be all present to assign the higher rating)
- Hildoer v. Nicholson, 24 Vet.App. 196 (2010) (consideration of general medical conditions on Axis III in mental disorder examinations)
- Gaston v. Shinseki, 605 F.3d 979 (2010) (one‑year lookback rule for effective dates of increased rating claims)