11-30 188
11-30 188
| Board of Vet. App. | May 22, 2017Background
- Veteran served active duty June 1976–January 1979; claims file contains incomplete service treatment records but credible lay testimony of a 1977 fall from a fire truck that injured his right side.
- Multiple claims on appeal: service connection for obstructive sleep apnea (OSA), right and left shoulder conditions, cervical and lumbar degenerative disc disease (DDD), headaches, chest pain/possible heart disease, bilateral carpal tunnel syndrome (CTS), head injury/TBI, and increased/extraschedular ratings for right wrist and elbow and asthma/COPD issues.
- Procedural history: Board granted service connection for OSA, right shoulder (status post SLAP tear, AC arthrosis/DJD), cervical and lumbar DDD, and headaches; denied service connection for chest pain (but remanded for possible heart disease), denied extraschedular ratings for right wrist and elbow; remanded several claims (left shoulder, bilateral CTS, head injury, asthma/COPD examinations, and heart opinion) for further development.
- Key factual findings: OSA was found aggravated by service‑connected asthma/COPD; right shoulder, cervical, and lumbar DDD were found likely related to the in‑service fall; headaches found secondary to cervical DDD; chest pain is a symptom already compensated via service‑connected GERD and, to the extent cardiac etiology exists, that issue is remanded for development.
- Board relied on a mix of VA examiners, private chiropractor opinions, lay statements (including the veteran’s father), and benefit‑of‑the‑doubt resolution where opinions conflicted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSA is service‑connected/secondary to service‑connected conditions | Veteran argued OSA caused or aggravated by service‑connected disabilities (eventually bronchial asthma/COPD) | Earlier VA opinions found no nexus to some disabilities; later opinion attributed aggravation to new asthma/COPD service connection | Granted: OSA service‑connected as aggravated by service‑connected asthma/COPD |
| Whether right shoulder (SLAP, AC arthrosis/DJD) is service‑connected | Veteran asserted shoulder injured in 1977 firetruck fall and related to later wrist/elbow injuries | VA records lacked explicit STR entry for fall; some VA examiners attributed shoulder to later work injury/degeneration | Granted: service connection for right shoulder conditions based on credible lay testimony, private opinions, and probative VA exam supporting nexus |
| Whether cervical and lumbar DDD and headaches are service‑connected/secondary | Veteran asserted neck/back injured in same 1977 incident; headaches due to neck | Some VA opinions attributed back problems to post‑service work injuries; other opinions and private evidence supported in‑service link | Granted: cervical DDD and headaches (secondary to cervical) granted; lumbar DDD granted on benefit‑of‑the‑doubt where competing opinions existed |
| Whether chest pain is service‑connected (including as cardiac) | Veteran linked chest pain to reflux, asthma/COPD, asbestos exposure, or heart disease | Board noted chest pain is a symptom (not a standalone disability), claimant is compensated for chest pain via GERD, and pulmonary ratings don't cover chest pain; cardiac etiology insufficiently developed | Denied as an independent chest‑pain disability; remanded cardiac/heart diagnoses for further development |
| Whether extraschedular ratings are warranted for right wrist and right elbow | Veteran argued symptoms (weakened grip, tremors, swelling, locking, work interference) justify extraschedular ratings | VA argued schedular criteria contemplate these symptoms and record lacks evidence of marked employment interference or frequent hospitalizations | Denied: symptoms are contemplated by schedular criteria and evidence does not show exceptional/marked interference |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA examinations must be adequate for adjudication)
- Kahana v. Shinseki, 24 Vet. App. 428 (2011) (incomplete STRs do not disprove an in‑service event when other evidence supports occurrence)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit‑of‑the‑doubt rule where evidence is in equipoise)
- Sanchez‑Benitez v. West, 13 Vet. App. 282 (1999) (pain alone is not a VA compensable disability unless linked to a diagnosable condition)
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑step analysis for extraschedular ratings)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (functional loss including pain and flare‑ups must be considered in applying schedular criteria)
- Mariano v. Principi, 17 Vet. App. 305 (2003) (VA may not develop evidence for the primary purpose of obtaining evidence against the claimant)