13-10 523
13-10 523
Board of Vet. App.May 31, 2017Background
- Veteran served on active duty Nov 1960–May 1963 and sought service connection for a low back disorder.
- Initial RO denial (June 2011) was appealed through NOD, SOC, and VA Form 9; Board hearings and remands took place (including remands in Mar 2015 and Jan 2016).
- Medical record: July 2010 lumbar MRI and March 2011 diagnosis of multilevel lumbar degenerative disc disease (DDD); earlier VA/medical notes include an Oct 1963 VA exam reporting back pain beginning in service and an Aug 1965 Tripler record reporting intermittent pain since service.
- VA examiner (May 2016 addendum) concluded DDD is most likely due to aging and post-service work (roofing, climbing), noting no chronic back diagnosis at separation and progressive imaging after service.
- Board found the May 2016 opinion relied heavily on absence of a DDD diagnosis in service and did not adequately address Veteran’s contemporaneous lay reports (Oct 1963, Aug 1965) or post-March 2017 VA records; remand ordered for further development and a new/addendum opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for low back disorder | Veteran: back pain began in service (ruck-sacking), continuous since service | VA: objective evidence supports aging/post-service work etiology, no chronic DDD at separation | Remanded for further development; no final decision on service connection |
| Adequacy of medical nexus opinions | Veteran: existing opinions fail to consider contemporaneous lay reports and full record | VA: prior addendum addressed etiology but relied on lack of in-service DDD diagnosis | Board: May 2016 opinion inadequate; order addendum opinion that reviews all pertinent in-/post-service evidence and addresses lay assertions |
Key Cases Cited
- McLendon v. Nicholson, 20 Vet. App. 79 (discusses VA obligation to obtain adequate medical opinions)
- Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (VA constructive possession of VA treatment records)
- Dunn v. West, 11 Vet. App. 462 (1998) (treatment of VA records in claims adjudication)
- Bell v. Lewinski, 2 Vet. App. 611 (1992) (VA records and claims file association)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence during remand period)
- Stegall v. West, 11 Vet. App. 268 (1998) (remand directives must be complied with by AOJ)