11-28 606
11-28 606
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty 1985–1992 as a paratrooper; service records confirm airborne training and Parachutist Badge.
- Service treatment records from 1987–1992 document neck and shoulder pain with diagnoses of muscle strain and paravertebral tenderness.
- Post-service records (chiropractic from 1995–2002; imaging from 2007–2008) document ongoing cervical symptoms and MRIs showing degenerative disc disease and disc protrusions; cervical discectomy performed in March 2009.
- Veteran and multiple lay witnesses consistently reported onset of neck symptoms in service and continuity thereafter.
- February 2010 VA examinations diagnosed cervical degenerative disc disease but issued negative nexus opinions; Board found those opinions inadequately considered the Veteran’s reported history and chiropractic records.
- Procedural posture: appeal to the Board from RO decisions (2009 and 2012); Board granted service connection for a cervical spine disorder and remanded claims for increased rating for fibromyalgia and for TDIU for further development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for cervical spine disorder | Cervical condition was incurred in service from repeated rough parachute jumps and symptoms have persisted since service | VA examiners argued service records only show muscle strain and that degenerative disease arose post-service and is due to age/other factors | Granted: continuity of symptomatology established; VA negative opinions given no probative weight because they ignored veteran’s history and post-service records; benefit of doubt resolved for Veteran |
| Increased initial evaluation for fibromyalgia (>20%) | Fibromyalgia symptoms at hearing and recent therapy suggest greater severity than rated | RO had not yet shown higher severity based on existing record | REMANDED for a new VA exam (preferably rheumatology) to assess current severity and functional impact |
| Entitlement to TDIU | Veteran asserts unemployability due to service-connected conditions (including fibromyalgia) | TDIU intertwined with increased-rating claim; not fully developed | REMANDED/held in abeyance pending adjudication of fibromyalgia increased rating; readjudicate TDIU after further development |
Key Cases Cited
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology standard for chronic disease service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule in veteran’s favor)
- Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examiner must consider veteran’s lay reports; failure renders opinion inadequate)
- Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001) (clarifies assignment of reasonable doubt to claimant in veterans benefits cases)
- Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (VA duty to provide adequate examination when evidence suggests increased severity)