11-18 272
11-18 272
| Board of Vet. App. | Mar 22, 2017Background
- Veteran served in the Air Force from Aug 1965 to Aug 1991 with occupational exposures (machine shop chemicals, beryllium, etc.) and treated repeatedly for respiratory/infectious issues.
- Claims before the Board arose from RO decisions (Jan 2010, Dec 2013); hearing held in Mar 2015; VA occupational-medicine opinion obtained June 2016; treating physician submitted supplemental opinions.
- Veteran withdrew appeals for service connection for sarcoidosis and tuberculosis at the Oct 2013 hearing.
- Medical evidence established a diagnosis of common variable immune deficiency (CVID); VA reviewer linked many current problems to either CVID or beryllium exposure.
- Treating psychiatrist attributed Veteran’s erectile dysfunction to antidepressant medication for service‑connected depression.
- Prostatitis had been finally denied in 1992; new evidence (CVID diagnosis) was submitted and deemed potentially material, prompting reopening and remand for medical opinion; PTSD claim remanded for issuance of a Statement of the Case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for common variable immune deficiency (CVID) | CVID manifested in or was caused by in‑service toxic exposures | RO/VA initially questioned causal link to service exposures | Granted — CVID found manifested in service or caused by service exposures |
| Service connection for mycoplasma infection, asthma, chronic bronchitis, residuals of pneumonia (secondary) | These conditions are caused by or proximately due to CVID (or beryllium exposure) | VA reviewer initially said exposures less likely caused some conditions but beryllium could have caused respiratory disease; CVID likely explains infections | Granted on a secondary basis to CVID (and related to service via CVID or beryllium) |
| Service connection for erectile dysfunction (secondary) | ED is medication‑induced from drugs treating service‑connected depression | RO previously found ED age‑related, not secondary to depression | Granted — treating psychiatrist’s opinion linking ED to antidepressant found credible; service connection as secondary to service‑connected depression awarded |
| Reopening and adjudication of prostatitis | New diagnosis of CVID constitutes new and material evidence that may link present prostatitis to in‑service episodes | Earlier RO denial (1992) became final; reopening requires evidence that raises reasonable possibility of substantiation | Reopened — new and material evidence found; claim remanded for VA medical opinion whether prostatitis is chronic and secondary to CVID or related to in‑service prostatitis |
| Withdrawal of sarcoidosis and tuberculosis appeals | Veteran expressly withdrew these appeals at hearing | VA had denied those claims earlier | Appeals dismissed for lack of jurisdiction due to withdrawal |
| PTSD: procedural defect | Veteran filed timely disagreement; RO had not issued a Statement of the Case | RO had denied PTSD in Dec 2013 but did not complete appellate paperwork | Remanded — Board orders RO to issue Statement of the Case and procedural info for appeal |
Key Cases Cited
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit‑of‑the‑doubt / "approximate balance" standard)
- Caluza v. Brown, 7 Vet. App. 498 (1995) (Board must analyze credibility and explain rejection of favorable evidence)
- Shade v. Shinseki, 24 Vet. App. 110 (2010) (liberal standard for reopening; "reasonable possibility of substantiating the claim")
- Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (VA must reopen claim when new and material evidence presented)
- Bernard v. Brown, 4 Vet. App. 384 (1993) (remand required when Board cannot decide reopened claim without prejudice)
- Manlincon v. West, 12 Vet. App. 238 (1999) (procedural remand required when RO has not issued required statement of the case)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence on remand; remanded claims must be handled expeditiously)
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board need not discuss every piece of evidence)
- Alemany v. Brown, 9 Vet. App. 518 (1996) (to deny on merits, evidence must preponderate against claim)