12-31 234
12-31 234
| Board of Vet. App. | May 31, 2017Background
- Veteran served on active duty 1978–1992 and appealed multiple VA RO rating decisions from 2010–2012 to the Board of Veterans' Appeals.
- RO granted service connection for tinnitus (10%) and increased PTSD to 70% effective October 30, 2008; Veteran filed appeals and a March 2015 VA Form 9 selecting only an earlier effective date for PTSD and requesting a Travel Board hearing.
- Veteran is service-connected for allergic rhinitis and seeks an initial compensable rating; medical records include VA exams (2011, 2016) and private treatment notes (2005, 2016).
- Board found VA provided adequate notice and assistance and that VA examinations were adequate and unchallenged by the Veteran.
- Board dismissed appeals as to higher tinnitus and PTSD ratings for failure to file a timely substantive appeal on those specific issues, and denied an initial compensable rating for allergic rhinitis.
- Several claims (hypertension, TBI, bronchitis, GERD, COPD, right and left knee issues, cold-weather injuries, and an earlier PTSD effective date/hearing requests) were remanded for additional development and Travel Board hearings where requested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Initial rating >10% for tinnitus | Veteran seeks higher tinnitus rating | VA contends SOC appeal did not raise tinnitus on timely Form 9 | Dismissed for lack of timely substantive appeal |
| Increased PTSD rating >30% (pre-10/30/2008) and >70% (post-10/30/2008) | Veteran seeks higher ratings and earlier effective date | VA contends Veteran did not timely file Form 9 on those rating issues; only appealed effective date | Dismissed for lack of timely substantive appeal; remand only for earlier effective date hearing request |
| Initial compensable rating for allergic rhinitis | Veteran seeks compensable rating based on sinus symptoms | VA relies on 2011/2016 exams and imaging showing no polyps or >50% obstruction | Denied; preponderance shows criteria for compensable rating not met |
| Service connection for hypertension | Veteran asserts service-related hypertension (including Gulf War exposure) | VA notes lack of VA medical opinion and mixed historical evidence; must develop | Remanded for VA exam/opinion addressing service nexus, manifestation within one year, and aggravation by service-connected rhinitis |
| Service connection for TBI, bronchitis, GERD | Veteran submitted private opinion (Oct 2016) and earlier NOD/SOC | VA requires readjudication in SSOC to consider new private opinion | Remanded for readjudication and SSOC considering post-SSOC evidence |
| Hearings for multiple issues (PTSD effective date, left knee increase, right knee service connection, cold weather injuries, COPD) | Veteran requested local Travel Board hearings on appeal forms | VA had not scheduled requested Travel Board hearings | Remanded to schedule Travel Board hearings as requested |
Key Cases Cited
- Percy v. Shinseki, 23 Vet. App. 37 (2009) (untimely substantive appeal rules and when Board may decline jurisdiction)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (standards for adequacy of VA medical examinations)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA examiner adequacy and medical opinions)
- Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (notice requirements after grant of service connection)
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (notice not required after claim substantiated by grant of service connection)
- Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (Board may assume adequacy of VA exam absent challenge)
- McClendon v. Nicholson, 20 Vet. App. 79 (2006) (remand required when VA fails to provide necessary exam)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (right to submit additional evidence on remand)