12-24 827
12-24 827
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served Mar–Jun 2003 and Dec 2003–Jul 2010 and appealed multiple VA decisions from the Winston-Salem RO.
- RO previously granted service connection for degenerative disk disease and hypertension with noncompensable ratings; a 40% rating for the lumbar condition was assigned in a July 2012 SOC and maintained thereafter.
- Board remanded in Nov 2015 for additional development and VA examinations; subsequent SSOCs were issued in Apr, Jun, and Jul 2016.
- After those SSOCs, the RO obtained additional VA treatment records and an Oct 2016 thoracolumbar VA exam but did not issue a new SSOC addressing that evidence.
- The Oct 2016 examiner did not review the claims file, provided conclusory opinions lacking rationale, and failed to account for the Veteran’s statements; the Board found the exam inadequate.
- The Board remanded the claims (including deferring TDIU pending lumbar development) and ordered a new, file‑reviewing VA exam plus re‑adjudication with a new SSOC and an opportunity for the Veteran to respond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for asthma | Veteran asserts entitlement to service connection for asthma (claimed condition) | VA has not yet found record support; requires development | Remanded for further development (no decision) |
| Service connection for abdominal/groin tear residuals | Veteran asserts service connection for residuals | VA requires medical evidence/exam to adjudicate | Remanded for further development (no decision) |
| Service connection for left ear hearing loss | Veteran asserts entitlement | VA requires development/medical evidence | Remanded for further development (no decision) |
| Initial compensable rating for hypertension | Veteran seeks compensable rating | RO previously assigned noncompensable rating; appeal ongoing | Remanded for further development (no decision) |
| Higher initial rating for lumbar degenerative disk disease (L4-5, L5-S1) | Veteran seeks increased rating / comments on symptom severity and impact | RO relied on inadequate Oct 2016 exam and did not issue SSOC for later records | Remanded: new VA exam required (examiner must review file, address symptoms, flare-ups, frequency/duration, aggravation); re‑adjudicate after additional development |
| Left ear hearing loss — (duplicate of above?) | — | — | Remanded for development |
| TDIU | Veteran seeks TDIU based on unemployability | Board deferred TDIU pending increased rating development for lumbar condition | Deferred/Remanded (TDIU development to follow increased rating adjudication) |
(Note: multiple issues were remanded rather than decided; the board specifically ordered a new lumbar exam and a new SSOC addressing records received after the last SSOCs.)
Key Cases Cited
- Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.) (AOJ must address evidence before Board review)
- Dunn v. West, 11 Vet. App. 462 (Vet. App.) (VA facility records are constructively in the claims file)
- Bell v. Derwinski, 2 Vet. App. 611 (Vet. App.) (same constructive possession principle)
- Woehlaert v. Nicholson, 21 Vet. App. 456 (Vet. App.) (VA must provide an adequate examination once it undertakes to obtain one)
- Bowling v. Principi, 15 Vet. App. 1 (Vet. App.) (boards should return inadequate examinations when clarification is essential)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (medical opinions must contain clear conclusions with supporting rationale)
- Stefl v. Nicholson, 21 Vet. App. 120 (Vet. App.) (medical opinions must be reasoned and reviewable)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App.) (remand required when evidence is insufficient to decide the claim)
- Washington v. Nicholson, 19 Vet. App. 362 (Vet. App.) (Veteran competent to report firsthand symptoms)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App.) (Veteran has right to submit additional evidence after remand)