11-04 736
11-04 736
| Board of Vet. App. | May 31, 2016Background
- Veteran served on active duty Sep 1960–Sep 1962 and is service‑connected for a left knee ACL tear sustained playing football in service.
- Veteran sought service connection for a right knee disorder and for left leg venous disorders (varicose veins, DVT, post‑phlebitic syndrome); also claimed TDIU.
- Initial RO denials (May 2010) appealed; matter advanced on Board docket; hearings and remands occurred; Veteran testified in Dec 2015 and submitted lay statements.
- Treating VA physician (Dr. A.J.M.) opined the right knee tricompartmental osteoarthritis is caused by compensating for the service‑connected left ACL; Dr. A.J.M. also offered an unsupported opinion on DVT/varicose vein causation.
- Board found competent lay and medical evidence linking the right knee osteoarthritis to the service‑connected left knee and granted secondary service connection for the right knee.
- Board remanded the left leg venous disorder claim for a new VA exam/opinion (insufficient rationale and gaps in record) and remanded TDIU as inextricably intertwined with the unresolved rating and venous claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — right knee (secondary to left knee) | Right knee osteoarthritis caused by favoring/compensating for service‑connected left ACL tear; onset/progression observed since service | RO previously denied; no negative nexus opinion in record | Granted — Board found current diagnosis and probative nexus opinion from treating physician plus credible lay statements established secondary service connection |
| Service connection — left leg venous disorder (varicose veins/DVT/post‑phlebitic) | Venous problems began in/after service or are related to left ACL or long‑standing varicose veins causing DVT | March 2015 VA examiner said DVT diagnosed long after service; examiner did not address varicose veins/post‑phlebitic linkage | Remanded — existing opinions lacked rationale or omitted issues; new exam/opinion and development required |
| TDIU | TDIU asserted based on combined disabilities and functional impairment | AOJ had not adjudicated TDIU after new development and assigned ratings | Remanded — TDIU is inextricably intertwined with right knee rating and venous claim; premature to decide until development complete |
| Procedural status of May 2010 denial | N/A (procedural posture) | RO later found no new and material evidence but timely NOD placed matter on appeal | Board treated May 2010 decision as proper decision on appeal per Tablazon and proceeded accordingly |
Key Cases Cited
- Allen v. Brown, 7 Vet. App. 439 (en banc 1995) (standard for secondary service connection: current disability and causal/aggravating relationship to service‑connected condition)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical opinion must provide clear conclusions with supporting data and a reasoned explanation to be highly probative)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (remand required when VA examiner fails to address relevant etiological questions)
- Harris v. Derwinski, 1 Vet. App. 180 (1991) (claims inextricably intertwined should be adjudicated together)
- Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (adjudication of related issues may be premature where development is incomplete)
- Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony competent to describe observable symptoms)
- Tablazon v. Brown, 8 Vet. App. 359 (1995) (procedural rule on correct decision on appeal when multiple RO actions exist)