12-17 725
12-17 725
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served in the U.S. Navy, Apr 1968–Jan 1972; appeal from a Mar 2011 RO decision; Board hearing held Apr 2016; remand actions completed.
- Service records show asymptomatic pes planus at enlistment; separation exam normal for feet and lower extremities; no documented knee, heart, hypertension, or erectile dysfunction in service records.
- Post-service onset for asserted conditions occurred decades after separation; treatment records show gout/foot problems beginning ~2004–2007, hypertension and LVH diagnosed ~2009–2010, erectile dysfunction reported from 2005, and knee complaints much later.
- Multiple VA medical examinations (2010, 2012, 2017) concluded it is "less likely than not" that the claimed conditions were caused or aggravated by service or by the veteran’s service-connected asbestos pulmonary disease or its treatments.
- The Board gave limited weight to the veteran’s lay etiology opinions and to speculative private-provider opinions; found VA exams and contemporaneous records more probative.
- Claim for increased rating for service‑connected asbestos pulmonary disease was remanded for clarification of January 2017 PFT results and medical opinion to apportion disability between service‑connected asbestosis and non‑service‑connected COPD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — bilateral foot disability | Foot conditions (gout, bunions, pes planus) caused/ aggravated by service activities or service exposures/meds | No in-service symptomatic foot disease except asymptomatic pes planus; long post‑service onset; VA exams find no nexus; private opinions speculative | Denied |
| Service connection — bilateral knee disability | Knee pain began in service from physical duties and continued after separation | Service records negative; delayed treatment decades later; VA records report later onset; VA examiner finds no nexus | Denied |
| Service connection — heart condition (including secondary to asbestosis) | Heart disease secondary to service or to service‑connected asbestos pulmonary disease | No in‑service heart disease; diagnoses arose years later; VA examiners conclude heart condition more likely due to hypertension, not asbestosis | Denied |
| Service connection — hypertension (including secondary to asbestosis) | Hypertension caused or aggravated by service‑connected lung disease or its medications | No in‑service HTN; essential HTN predated asbestosis; VA exams find no causal/ aggravating relationship with asbestosis or its meds | Denied |
| Service connection — erectile dysfunction (including secondary to asbestosis) | ED caused or aggravated by medications for service‑connected conditions | ED onset post‑service; multiple non‑service‑connected risk factors (diabetes, HTN, hypogonadism) identified; VA exams find no nexus | Denied |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (service-connection elements require current disability, in-service event, and nexus)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (limits and guidance on lay evidence competence for medical etiology)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.) (lay evidence may be competent in some medical matters but depends on complexity)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt rule standard)
- Stegman v. Derwinski, 3 Vet. App. 228 (Vet. App.) (speculative medical opinions insufficient to establish service connection)
- Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir.) (when to refer for medical opinion)