12-25 231
12-25 231
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served May 1968–May 1970; initial RO decision in Feb 2010; March 2015 Board denied low back but Court vacated that portion by joint remand in Dec 2015.
- Medical history includes in-service complaints of low back pain in 1969, private treatment and surgery (hemilaminectomy/discectomy) in 1976–1977, and later VA exams diagnosing lumbar degenerative disc disease, status-post hemilaminectomy.
- Veteran consistently reported back pain since service and attributed later worsening to a 1976 fall and to falls caused by his service‑connected right ankle disability.
- VA examiners (2008, 2012) concluded no nexus to service or to ankle; a June 2016 private orthopedic opinion (Dr. M) reviewed records, cited literature, and concluded the lumbar pathology was related to the in‑service injury and progressive to surgery.
- The Board found the private opinion more probative because it weighed the Veteran’s consistent lay statements and provided detailed rationale; service connection for lumbar DDD, status‑post hemilaminectomy, was granted.
- Claims for an increased rating for the right ankle and for TDIU were not finally adjudicated and were remanded for further development and an adequate VA ankle exam (per Correia-related concerns) and for TDIU development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for lumbar spine degenerative disc disease (status‑post hemilaminectomy) | Back disorder began in service (1969 complaints), continued post‑service, and private expert ties current pathology to in‑service injury and progression | VA examiners said no nexus: gap in treatment between 1970 and 1976 and no medical literature linking ankle to back | Granted: Board found private opinion more probative, credited Veteran's lay statements, and awarded service connection |
| Increased rating for right ankle residuals (currently 10%) | Severity warrants higher rating; Veteran reports functional loss/instability causing falls | VA record lacks adequate recent ankle exam data; prior VA exam inadequate under current caselaw | Remanded for new, detailed VA exam (active/passive, weight‑bearing/nonweight‑bearing testing; DBQ) |
| Total Disability based on Individual Unemployability (TDIU) | Dr. M opined Veteran is unable to work due to service‑connected conditions | AOJ had not adjudicated TDIU; further development needed | Remanded for development and AOJ adjudication of TDIU before appellate review |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (elements of service connection and nexus requirement)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptoms may establish chronicity for presumptive service connection)
- Caluza v. Brown, 78 F.3d 604 (Fed. Cir. 1996) (factors for assessing witness credibility and probative value of lay statements)