11-24 049
11-24 049
| Board of Vet. App. | Jun 21, 2017Background
- Veteran served on active duty May 1978–Jan 1980 and filed for service connection for lumbar degenerative disc disease (DDD) with left sciatica and related conditions.
- RO originally denied service connection in an April 1987 rating decision; the Veteran did not appeal within one year, making that decision final as to the then-record.
- The Veteran later sought to reopen the 1987 denial; additional evidence (private and VA treatment records and lay statements) was submitted after 1987.
- RO denied reopening in September 2009 and again denied the substantive claim in April 2010; the Veteran filed a timely NOD and perfected an appeal following the SOC.
- The Board found the post-1987 evidence to be new and material under 38 U.S.C. § 5108/38 C.F.R. § 3.156 and granted reopening, but remanded the reopened claims (lumbar DDD, post‑phlebitic syndrome, and increased rating for pes planus) for further development and new VA examinations and opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claim for lumbar DDD with left sciatica should be reopened | Veteran contends new evidence (medical records, VA treatment, lay statements about in-service injury) raises a reasonable possibility of substantiation | RO historically argued evidence was not material to reopen claim | Reopened: Board found post‑1987 evidence new and material and granted reopening |
| Service connection for lumbar DDD with left sciatica (merits) | Veteran asserts current diagnoses are related to in‑service events and/or aggravated by service‑connected conditions | VA has not yet conceded service connection; development and medical nexus opinion needed | Remanded for VA exam and nexus opinions (direct and aggravation theories) |
| Service connection for bilateral post‑phlebitic syndrome | Veteran points to service treatment records showing edema and swelling in 1978 | Prior VA exams were inadequate and did not address certain in‑service complaints or provide direct nexus opinion | Remanded for adequate opinion or new exam addressing in‑service history and etiology |
| Rating in excess of 30% for bilateral pes planus since March 25, 2014 | Veteran contends pes planus worsened and warrants higher rating | Existing September 2013 exam is over three years old and insufficient | Remanded for a new VA examination to evaluate current severity and rationale |
Key Cases Cited
- Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (new and material evidence standard for reopening claims)
- Shade v. Shinseki, 24 Vet. App. 110 (Vet. App. 2010) (low threshold for reasonable possibility to substantiate claim on reopening)
- Justus v. Principi, 3 Vet. App. 510 (Vet. App. 1992) (presumption of credibility for newly submitted evidence on reopening)
- Evans v. Brown, 9 Vet. App. 273 (Vet. App. 1996) (new evidence need only be probative of at least one element of claim to reopen)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App. 1999) (appellant right to submit additional evidence after remand)