12-17 795
12-17 795
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served active duty Navy 1972–1975 and later ANG/USAFR service; claims stem from alleged in-service onset of pseudofolliculitis barbae and left knee pain.
- Appeals from an October 2010 RO rating decision; Board hearing held March 2014; Board remanded in April 2015 for further development; new evidence submitted and appeal perfected for some other hip issues (deferred).
- Veteran reports shaving-related facial skin problems beginning in basic training and persistent symptoms; reports left knee pain after climbing ladders while in ANG service.
- August 2015 VA dermatology and orthopedic examinations provided negative nexus opinions but failed to address the Veteran’s lay statements and specific remand instructions in their rationales.
- Board found the August 2015 exams inadequate under precedent (failure to address lay contentions and to opine on aggravation) and ordered addendum opinions and further development of records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for pseudofolliculitis barbae | Onset during Navy service when he first shaved; symptoms observed at that time | VA relies on absence of service records showing condition and August 2015 negative opinion | Remanded: VA exam inadequate for failing to address Veteran’s lay statements; new/addendum opinion required |
| Service connection for left knee disorder (direct) | Left knee pain began in service after ladder/climbing incident in ANG | August 2015 examiner found no nexus to service but did not adequately rationalize regarding reported in‑service incident | Remanded: existing exam inadequate for not addressing Veteran’s specific contentions; new exam ordered |
| Service connection for left knee disorder (secondary to right knee) | Left knee caused or aggravated by service‑connected right knee condition | August 2015 examiner rejected secondary causation but did not specifically address aggravation as remanded | Remanded: examiner must opine on causation and aggravation using "at least as likely as not" standard with full rationale |
| Procedural due process / development | Veteran seeks full consideration of lay evidence and complete medical rationale | VA provided exams relying on record silence rather than addressing lay testimony | Board requires compliance with remand directives and ordered additional development and compliant opinions |
Key Cases Cited
- Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) (examinations must address veteran’s lay statements and provide adequate rationale)
- Dalton v. Nicholson, 21 Vet.App. 23 (2007) (examiner’s reliance on absence of service records without discussing veteran’s report renders opinion inadequate)
- Stegall v. West, 11 Vet.App. 268 (1998) (remand directives must be complied with by the VA)
- Kutscherousky v. West, 12 Vet.App. 369 (1999) (veteran may submit additional evidence after remand)
- Gray v. McDonald, 27 Vet.App. 313 (2015) (due process protections apply before the Board)
- Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.) (addressing due process in VA proceedings)
- Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (discussing procedural protections in VA appeals)