13-00 223
13-00 223
| Board of Vet. App. | Feb 2, 2017Background
- Veteran served June 1976–June 1980 and appealed multiple RO rating decisions (Aug 2010, Sep 2010, May 2012) to the Board.
- RO previously denied service connection for a GI disorder in July 1980 based on only an in-service episode of irritable bowel and no established post-service diagnosis or nexus.
- Since 1980, VA treatment records (including a July 2012 GI note) and the Veteran’s competent lay testimony indicate current IBS/functional GI symptoms.
- Service records show an October 1977 note of neuritis of the right hip but normal neurologic exam at separation; post-service VA exams and EMG/NC testing attribute lower‑extremity symptoms to lumbar degenerative disc disease.
- Right lower‑extremity varicose veins were granted 10% (Diagnostic Code 7120/7121) for intermittent edema/aching relieved by elevation/compression; evidence does not show persistent edema required for a higher rating.
- Right knee: two surgical scars (tender) warranted a 10% rating under DC 7804; a long‑standing 10% rating for lateral instability (DC 5257) was improperly reduced in Aug 2010 and was restored.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reopen GI claim | New VA treatment notes and lay testimony show current IBS and continuity with in-service episode | Prior final denial (1980) remains unless new and material evidence shown | Reopening granted — new and material evidence (current diagnosis + nexus possibility) exists |
| Service connection for GI disorder (on merits) | IBS is related to the in‑service irritable bowel episode | No nexus yet established in record | Remanded for VA medical opinion to determine nexus |
| Neurological impairment of lower extremities (service connection/secondary) | Symptoms/lay history show neuropathy from service knee injury or secondary to pes planus | Medical evidence (EMG/NC, VA exams) shows lumbar degenerative disc disease, no service causation or aggravation; lay opinion insufficient for complex medical nexus | Denied — preponderance of evidence against service connection |
| Increased rating for right lower‑extremity vascular disability (varicose veins) | Leg swelling/pain severe; requests >10% | Examinations show intermittent edema/aching relieved by elevation, no persistent edema or stasis changes required for ≥20% | Denied — 10% affirmed as most nearly approximate |
| Right knee skin (surgical scars) rating | Scars are painful/tender, warrant at least 10% | Some exams found no painful scars; RO assigned 0% initially | Granted 10% under DC 7804 (two tender scars); no higher rating warranted |
| Restoration of right knee lateral instability rating | 10% lateral instability existed >20 years and was terminated/converted to arthritis rating in 2010 | RO changed DC to rate arthritis but effectively removed protected 5257 rating | Restored separate 10% rating for lateral instability (per Murray precedent) |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU as element of rating when unemployability evidence is in record)
- Shade v. Shinseki, 24 Vet. App. 100 (2010) (new evidence of current disability can reopen claim tied to prior in‑service evidence)
- Justus v. Principi, 3 Vet. App. 510 (1992) (presumption of credibility for evidence submitted for reopening)
- Murray v. Shinseki, 24 Vet. App. 420 (2011) (separate knee ratings for arthritis and laxity; protected rating reversal error)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (adequacy of joint exams requires pain testing on active/passive, weight/nonweight‑bearing)
- Thun v. Peake, 22 Vet. App. 111 (2008) (extraschedular (referral) threshold inquiry)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit‑of‑the‑doubt standard)
- Jandreau v. Nicholson, 492 F.3d 1372 (2007) (limits of lay evidence on medical etiology)