13-03 446
13-03 446
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served on active duty Feb 1975–Oct 2000 and appealed VA denials from a June 2010 rating decision.
- Issues on appeal: entitlement to TDIU and service connection for renal carcinoma (claimed as right renal mass).
- Veteran appealed through NODs (2010), SOCs (2012), and VA Form 9 (2013); hearing request later withdrawn; appeal advanced on docket.
- In June 2016 the RO granted TDIU effective date of claim, resolving the TDIU issue while the appeal was at the Board.
- The Board dismissed the TDIU appeal as moot because the AOJ granted the benefit during appellate status.
- The Board remanded the renal carcinoma claim for further development because the May 2016 VA opinion was internally inconsistent and did not adequately reconcile identified risk factors with the Veteran’s exposures; ordered VCAA notice, record gathering, and a new addendum opinion by a VA clinician not previously involved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU | Veteran sought TDIU based on service-connected disabilities and inability to maintain substantially gainful employment | VA/RO originally denied; later granted TDIU in June 2016 | Dismissed as moot: AOJ granted TDIU while appeal pending, so no Board jurisdiction remains |
| Service connection for renal carcinoma (right renal mass) | Carcinoma resulted from in‑service exposure to chemicals/solvents and long latency supports service causation | VA examiner(s) opined less likely than not related to service; May 2016 opinion cited risk factors but was internally inconsistent and lacked specific application to Veteran | Remanded: obtain VCAA notice, gather outstanding records, and get an adequate addendum opinion from a new VA physician addressing Veteran’s exposure history and all relevant risk factors with rationale |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an adequate examination or opinion; duty to ensure adequacy)
- Hicks v. Brown, 8 Vet. App. 417 (1995) (inadequate medical evaluation frustrates judicial review)
- Hatlestad v. Derwinski, 3 Vet. App. 213 (1992) (when medical evidence is inadequate, VA must seek an advisory opinion)
- Stegall v. West, 11 Vet. App. 268 (1998) (remand requires compliance with its terms)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (remand for development affords due process)