11-06 227
11-06 227
| Board of Vet. App. | Sep 27, 2017Background
- Veteran served in Army National Guard with ACDUTRA/INACDUTRA (Mar 1980–Dec 2003); ACDUTRA episodes in Apr–Aug 1980 and Sep 9–13, 1991 during which he sustained a left-shoulder football injury.
- RO denied service connection for lumbar spine (Feb 1999) and for cervical and lumbar spine (July 2006); Veteran did not appeal those denials within one year, making them final.
- Veteran later submitted additional medical records, VA exams, lay statements, Social Security records, and testified in a Nov 2016 hearing.
- Board found new and material evidence to reopen the cervical-spine claim (based in part on Veteran’s credible lay testimony) but not the lumbar-spine claim.
- Board granted service connection for degenerative joint disease of the cervical spine (as secondary to service‑connected left-shoulder residuals); denied service connection for right‑shoulder residuals; denied an increased rating above 20% for left-shoulder residuals.
- TDIU was remanded as inextricably intertwined with the newly granted cervical‑spine service connection and returned to the RO for adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reopen claim for cervical DJD | New evidence (post-2006 records + Nov 2016 lay testimony) establishes a reasonable possibility to substantiate the claim | Prior RO decision (2006) was final; evidence is cumulative or insufficient unless it is new and material | Reopened — Board found the new lay testimony + record was new and material and reopened the claim |
| Service connection for cervical DJD (secondary to left shoulder) | Cervical DJD is caused/aggravated by service‑connected left-shoulder residuals | No competent nexus showing direct service incurrence; prior RO found no in-service cervical impairment | Granted — February 2006 VA opinion and other evidence found persuasive that left-shoulder residuals contributed to cervical DJD |
| Reopen claim for lumbar DDD/DJD | New post-2006 records and testimony show ongoing lumbar problems dating to 1991 injury | Evidence is cumulative or lacks competent medical nexus linking current lumbar disability to ACDUTRA or service‑connected conditions | Not reopened — evidence not new and material; did not trigger VA duty to obtain opinion |
| Service connection for right-shoulder residuals (direct or secondary) | Right-shoulder disability related to in‑service events or secondary to left-shoulder issues (including alleged 2007 motorcycle incident caused by left-shoulder spasms) | Medical and contemporaneous records show right-shoulder injury from 2007 motorcycle accident; no in‑service right-shoulder evidence or competent nexus to service or to left shoulder | Denied — preponderance of evidence shows right shoulder not related to service or service‑connected left shoulder |
| Increased rating for left-shoulder residuals (>20%) | Veteran reports significant pain, limited ROM, weakness and functional loss that exceed 20% criteria | VA exam (May 2013) shows ROM limited to ~65° flexion/60° abduction with painful/repetitive use but not to degree required for >20% under DC 5201 | Denied — evidence supports no more than 20% (ROM/function did not approximate limits for higher ratings) |
| entitlement to TDIU / extraschedular | Veteran argues unemployability due to combined disabilities (including newly granted cervical) | RO/Board deferred TDIU pending implementation of cervical grant and re-adjudication of combined rating | Remanded — TDIU issue remanded to RO as inextricably intertwined with rating changes |
Key Cases Cited
- Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.) (requirement to address reopening on appeal)
- Shade v. Shinseki, 24 Vet. App. 110 (Vet. App.) (new evidence raises reasonable possibility if it would trigger VA duty to assist)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (limits on lay evidence to establish medical diagnoses)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (medical opinions must provide clear rationale to be probative)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt rule and preponderance standard)