13-08 515
13-08 515
| Board of Vet. App. | May 31, 2017Background
- Veteran served in Navy (2001) and Army (2003–2004; 2007–2010); appealed VA RO rating decisions denying increased ratings and service connection for psychiatric conditions.
- Claims: increased ratings for lumbar spine (post-discectomy/laminectomy) and cervical spine, bilateral lower-extremity radiculopathy, right-hand injuries; entitlement to TDIU; and service connection for acquired psychiatric disorder including PTSD, depression, anxiety, and opioid use disorder.
- Record contains in-service notation of anxiety at separation but service records do not corroborate claimed foreign deployments or combat stressors relied on in some post-service psychiatric diagnoses.
- February 2016 VA psychiatric exam found no current acquired psychiatric disorder except opioid use disorder; examiner concluded opioid use disorder was due to drug abuse and not service-connected.
- Board found VA satisfied notice and duty-to-assist; denied service connection for psychiatric disorders and opioid use disorder because (1) no current diagnosable service-eligible psychiatric disorder was shown (other post-service diagnoses relied on inaccurate service-history reports), and (2) opioid use disorder resulted from drug abuse and is not compensable when not secondary to a service-connected condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for acquired psychiatric disorders (PTSD, depression, anxiety) | Veteran contends psychiatric disorders began in or are caused by service (reports stressors during deployments). | VA argues no current diagnosable acquired psychiatric disorder (post-service diagnoses rely on inaccurate deployment history), and February 2016 exam found no disorder except opioid use disorder. | Denied — insufficient evidence of a current service-eligible psychiatric disorder or nexus to service. |
| Service connection for opioid use disorder | Veteran asserts opioid disorder is related to service. | VA contends opioid use disorder is due to drug abuse and not caused by service or secondary to a service-connected condition. | Denied — opioid use disorder found to be from drug abuse and not service-connected. |
| Increased ratings for lumbar/cervical spine, radiculopathy, and right hand; TDIU | Veteran contends conditions have worsened since prior exams and entitlement to higher ratings/TDIU. | VA acknowledges potential worsening and incomplete prior examinations (Correia deficiencies) and that increased ratings/TDIU require updated development. | Remanded — for updated VA examinations (active/passive, weight-bearing/non-weight-bearing, repetitive testing), obtain outstanding VA records, and readjudicate including TDIU. |
| Adequacy of VA development/medical opinions | Veteran/rep challenged prior development and exam adequacy. | VA found duties to notify and assist met; 2016 exam adequate for psychiatric claim; additional exams needed for orthopedic claims per Correia. | Partly denied (psychiatric claim adjudicated on adequate record); orthopedic/increased-rating and TDIU claims remanded for further development. |
Key Cases Cited
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (scope of VA's duty to assist and when remand for medical nexus is required)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (criteria for adequacy of VA medical examinations)
- McClain v. Nicholson, 21 Vet. App. 319 (2007) (existence of a current disability for VA claims)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (reliability of medical opinions that rely on inaccurate factual premises)
- Stefl v. Nicholson, 21 Vet. App. 120 (2007) (probative value of medical evidence dependent on accurate factual foundation)
- Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (importance of contemporaneous diagnosis evidence in establishing a current disability)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (requirements for range-of-motion testing: active/passive and weight-bearing/non-weight-bearing)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limits on lay competency to provide medical etiology opinions)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (credibility limits when lay statements conflict with service records)
- Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (disallowing service connection for disabilities resulting from drug or alcohol abuse)