12-12 655
12-12 655
Board of Vet. App.Feb 28, 2017Background
- Veteran served Feb 1992–May 1998 and appealed VA RO rating decisions from May 2010.
- Veteran sustained an in-service parachute landing fall (1994) with documented lumbar injury; no neck complaints during service or at separation.
- VA granted service connection previously for a low back disorder; claim on appeal sought service connection for a cervical spine disorder and increased ratings for several extremity and gastrointestinal conditions.
- At a December 2016 Board hearing the Veteran withdrew appeals as to right wrist, lumbar spine, right ankle, left foot, and bowel (Gilbert’s/cholelithiasis) issues.
- Evidence includes VA exams (2010, 2016), private examinations (2012, 2016), and service treatment records; VA exam opined nexus less likely, private opinion supported nexus to in-service injury.
- Board found the medical evidence approximately in equipoise as to nexus for cervical spine and granted service connection; awarded a 10% rating (but no higher) for left wrist ligament tear and dismissed withdrawn appeals.
Issues
| Issue | Veteran's Argument | VA/Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for cervical spine/neck disorder | Cervical degenerative disc disease and cervical symptoms are related to 1994 parachute landing injury; private MD says nexus >50% | VA exam found lack of in-service neck complaints and opined nexus less likely | Service connection granted — Board found private opinion adequate and evidence in equipoise, so benefit of doubt resolved for Veteran |
| Increased rating for left wrist ligament tear (in excess of 0%) | Wrist has painful limited motion, weakness, atrophy, paresthesias and functional loss warranting >0% and possible >10% | VA exam(s) show normal or non-compensable ROM; pain present but ROM not reduced to schedular higher thresholds | 10% rating granted (minimum compensable) but no rating >10% because dorsiflexion/palmar flexion did not meet higher schedular criteria; neurological findings not attributed to the service-connected ligament tear |
| Increased rating for right wrist, lumbar spine, right ankle, left foot | Veteran initially appealed lower ratings | VA/RO defended assigned ratings | Appeals withdrawn at hearing — claims dismissed per withdrawal |
| Increased rating for Gilbert’s syndrome and cholelithiasis with gallbladder polyp | Veteran appealed RO decision | VA/RO defended | Appeal withdrawn at hearing — claim dismissed |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements for direct service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limits continuity of symptomatology theory to conditions enumerated in regulation)
- Hart v. Mansfield, 21 Vet. App. 505 (Vet. App. 2007) (staged ratings appropriate when distinct periods show different disability levels)
- DeLuca v. Brown, 8 Vet. App. 202 (Vet. App. 1995) (functional loss includes pain, weakness, fatigability)
- Mitchell v. Shinseki, 25 Vet. App. 32 (Vet. App. 2011) (pain alone does not establish functional loss without showing effect on normal working movements)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App. 2008) (extraschedular consideration framework)
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA notice/duty-to-assist requirements discussion)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) (collective evaluation and adequacy of the rating schedule)