11-04 295
11-04 295
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served active duty 1973–1997; appeal from RO Winston-Salem rating decision (Jan 2010) and remand (Jul 2014).
- Claims on appeal: increased ratings for depressive disorder and low back pain (remanded), increased rating for right sciatic neuropathy, and TDIU.
- VA examinations for sciatic neuropathy in Jan 2010 and Mar 2013 documented mild, predominantly sensory findings (decreased vibration sense, mild pain), normal strength/reflexes, and no atrophy.
- Evidence of occupational impact: Veteran worked as a junior ROTC instructor through June 28, 2016, reported missed workdays and difficulty standing/sitting; employer confirmed missed hours and retirement/stop-work date.
- Private physicians opined the Veteran was unemployable due to back pain and secondary depression; Board found medical evidence plus work history warranted grant of TDIU effective June 28, 2016.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Initial rating for depressive disorder (in excess of 10% before 3/27/13; >50% thereafter) | Depression worsened and led to early retirement; current ratings too low | VA relied on prior exams; remand needed for updated exam evidence | REMANDED for new psychiatric exam and readjudication |
| Increased rating for mechanical low back pain (>20%) | Back pain and functional loss (standing/sitting, flare-ups) justify higher rating | Existing exams (2013) insufficient under Correia; further testing needed | REMANDED for new back exam (ROM testing per Correia) |
| Increased initial rating for sciatic neuropathy, right ( >10%) | Symptoms (pain, decreased sensation, functional impact) merit higher schedular rating | Examinations show only mild, largely sensory impairment; no motor loss/atrophy | DENIED — evidence supports only 10% (mild incomplete paralysis) |
| TDIU (total disability based on individual unemployability) | Service‑connected physical and psychiatric disabilities render him unemployable (stopped work 6/28/2016) | VA noted earlier periods of full‑time employment; needs proof of inability to secure/follow substantially gainful employment | GRANTED effective June 28, 2016 (sufficient combined ratings and evidence of work‑incapacitating limitations) |
Key Cases Cited
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (once service connection is granted, defects in prior notice are not prejudicial)
- Fenderson v. West, 12 Vet. App. 119 (Vet. App. 1999) (staged ratings required when medical evidence shows different levels of disability over time)
- Correia v. McDonald, 28 Vet. App. 158 (Vet. App. 2016) (examination must record ROM testing for pain on active/passive motion and weight‑bearing/non‑weight‑bearing)
- Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (determination of employability is a factual question for the finder of fact, not a medical opinion)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App. 1990) (benefit-of-the-doubt rule applies when evidence is in approximate equipoise)