11-15 080
11-15 080
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served on active duty from July 1986 to February 1990 and appealed VA rating decisions from Aug 2009 and May 2012; Board hearing held Jan 2017 (videoconference).
- Final VA denials from Aug 2003 and Feb 2004 denied service connection for right hip; those decisions were not appealed and became final.
- Post‑2004 evidence (VA and private treatment records, including a July 2008 VA exam) shows diagnoses of bilateral hip bursitis (left greater than right) and documents treatment through 2016.
- Veteran testified the service‑connected bilateral knee disabilities cause or aggravate her hip problems and that her knee symptoms have worsened since Oct 2014 (uses braces, cane, injections, falls monthly).
- Board found the post‑2004 evidence is new and material as to the right hip claim and granted reopening; the Board remanded the reopened right hip claim, the left hip claim, knee rating increases, and TDIU for further development (exams, SSA and employment records, and readjudication).
Issues
| Issue | Plaintiff's Argument (Veteran) | Defendant's Argument (VA) | Held |
|---|---|---|---|
| Reopen right hip service connection | New post‑2004 medical records and testimony show current right hip disability and possible secondary relation to service‑connected knees | Prior final denials (2003, 2004) showed no current diagnosis; claim closed absent new & material evidence | Reopened — Board found new and material evidence (July 2008 VA exam and other records) and granted reopening |
| Service connection for left hip (including secondary to knees) | Left hip diagnosed; may be secondary to service‑connected knees | Existing medical opinions said unlikely related but lacked adequate rationale | Remanded — for an adequate orthopedic opinion addressing causation and aggravation |
| Rating >10% for right knee | Knees have worsened (uses cane, injections, falls) and cause functional loss | Most recent VA exam (Oct 2014) supported current ratings but veteran asserts increase | Remanded — new contemporaneous exam ordered to assess current severity and functional impact |
| Rating >10% for left knee | Same as right knee | Same as right knee | Remanded — see knee remand above |
| TDIU entitlement | Veteran received SSA disability and retired on disability; asserts unemployability due to service‑connected conditions | TDIU depends on outcomes of service‑connection and rating claims | Remanded — AOJ to readjudicate TDIU after development on hip/knee claims and obtain SSA/employment records |
Key Cases Cited
- Gonzales v. West, 218 F.3d 1378 (discusses scope of VA's obligation to address evidence in record)
- Fortuck v. Principi, 17 Vet. App. 173 (presumption of credibility for newly submitted evidence when considering reopening)
- Shedden v. Principi, 381 F.3d 1163 (elements required to establish service connection)
- Combee v. Brown, 34 F.3d 1039 (service connection where disorder first diagnosed after discharge)
- Davidson v. Shinseki, 581 F.3d 1313 (competence of lay evidence to establish incurrence)
- Jandreau v. Nicholson, 492 F.3d 1372 (when lay evidence is insufficient and medical evidence is required)
- Gilbert v. Derwinski, 1 Vet. App. 49 (preponderance standard and reasonable doubt rule)
- Shade v. Shinseki, 24 Vet. App. 110 (low threshold for "new and material" to reopen a claim)
- Barr v. Nicholson, 21 Vet. App. 303 (VA must provide an adequate examination/opinion)
- Kutscherousky v. West, 12 Vet. App. 369 (right to submit additional evidence during remand)