12-17 519
12-17 519
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served active duty Oct 2004–Dec 2005 (also ACDUTRA May–Jul 1998) and reported IED exposures in Iraq with later cognitive complaints, headaches, PTSD symptoms, and neck/jaw problems.
- RO initially denied PTSD (Aug 2009), TBI and memory loss (Nov 2011), and dizziness (Jun 2012); later granted service connection for PTSD and right-sided cervical muscle strain (Nov 2014 Board decision) and for bruxism and headaches (Feb 2013 RO decision) at noncompensable ratings.
- Veteran appealed effective dates and denial of dizziness; Court remanded dizziness for secondary-connection consideration (Dec 2015 MEM decision) and the Board remanded additional issues to the AOJ for further development.
- VA obtained VA examinations (notably Oct 2011 and Oct 2012 TBI exams) which found no current diagnosis or residuals of TBI and attributed cognitive/headache complaints to PTSD, bruxism/TMJ, or other causes.
- Board found VA satisfied notice and duty-to-assist; service connection for TBI denied because no current TBI/residuals established; earlier effective dates for PTSD and cervical strain prior to Dec 16, 2011 denied because no timely informal or formal claim earlier than that date.
- Issues regarding higher ratings for PTSD/neck, compensable ratings for bruxism/headaches, and service connection for memory loss and dizziness were remanded for further development and examinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for TBI | Veteran contends IED exposure caused TBI with memory loss and headaches | VA points to negative TBI screens and VA examiner opinions finding no TBI/residuals and alternative etiologies (PTSD, bruxism/TMJ) | Denied — preponderance against current diagnosis/nexus; no current TBI established |
| Earlier effective date for PTSD (pre-Dec 16, 2011) | Veteran/rep argued benefits entitlement arose earlier based on medical records and symptoms | VA/Board: Aug 2009 denial became final; no timely informal claim or new and material evidence within one year; first clear claim to reopen received Dec 16, 2011 | Denied — effective date remains Dec 16, 2011 |
| Earlier effective date for cervical muscle strain (pre-Dec 16, 2011) | Veteran/rep contested the assigned effective date | VA/Board: no claim or informal claim for neck condition before Dec 16, 2011; requirements for §3.157 not met | Denied — effective date remains Dec 16, 2011 |
| Secondary service connection / ratings for bruxism, headaches, memory loss, dizziness | Veteran seeks compensable ratings and secondary service connection (memory loss, dizziness possibly medication-related) | VA agrees further development/exams and opinions are needed; prior exams missing or show limited documentation | Remanded — additional VA exams, medical opinions, and VCAA notice required for memory loss and dizziness; reexamination for bruxism/headaches and PTSD/neck ordered |
Key Cases Cited
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (veteran not competent to render complex medical etiology opinions)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (medical examination adequacy and examiner review of claims file)
- MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir.) (medical treatment record does not by itself constitute informal claim absent intent)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt rule and preponderance standard)
- Cromer v. Nicholson, 19 Vet. App. 215 (Vet. App.) (no presumption arises from missing service records)