13-09 158
13-09 158
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served on active duty Jun 1995–Apr 1999; claim appealed from a Mar 2012 RO rating decision and heard by the Board (hearing Aug 2014; remand Apr 2015).
- Claims: service connection for bilateral shoulder disability, right groin disability, and asthma; and increased rating (>40%) for service‑connected UTI/cystitis.
- Service treatment records (including 1999 separation exam) did not diagnose shoulder, groin, or asthma and show minimal in‑service complaints inconsistent with current conditions.
- VA medical opinions (Feb 2012, Sept 2016, June 2017) found no diagnosed shoulder or groin disability, found asthma diagnosed after service and not linked to shipboard exposures, and assessed UTI/cystitis severity.
- UTI/cystitis rated at 40% under voiding dysfunction criteria; record lacked evidence of absorbent material use changed >4 times/day or other criteria required for a 60% rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — bilateral shoulder disability | Shoulder pain began in service from pulling shore cables; continuous symptoms since service | Service records and VA exams show no diagnosed shoulder disability or nexus to service | Denied — no current diagnosed shoulder disability and no nexus to service |
| Service connection — right groin disability | Groin injury in service from similar duties; ongoing groin pain since service | Service records limited; VA exams find no current diagnosed groin disability or continuity with in‑service complaint | Denied — no current diagnosed groin disability and no nexus/continuity |
| Service connection — asthma | Asthma began aboard USS Peterson, possibly due to asbestos or onboard fumes | Separation records negative; VA exams diagnose asthma post‑service and find no link to shipboard exposures | Denied — asthma not shown to be caused/aggravated by service |
| Increased rating — UTI/cystitis (>40%) | Symptoms (incontinence, bladder pain) merit rating >40% | Exams and records do not show wearing absorbents >4 times/day or other criteria for 60% rating; recurrent UTI (not interstitial cystitis) | Denied — evidence does not meet higher rating criteria |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA duties to notify and assist)
- Caluza v. Brown, 7 Vet. App. 498 (1995) (elements for direct service connection and nexus)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology under 3.303(b))
- Kahana v. Shinseki, 24 Vet. App. 428 (2011) (layperson competence to diagnose medical conditions)
- Brammer v. Derwinski, 3 Vet. App. 223 (1992) (no claim without proof of present disability)
- McClain v. Nicholson, 21 Vet. App. 319 (2007) (consideration of lay reports vs. medical evidence)