13-14 194
13-14 194
| Board of Vet. App. | May 31, 2017Background
- Veteran served on active duty Aug 1979–May 1982 and appealed VA RO Denver decisions regarding multiple musculoskeletal and neuropathic claims.
- Veteran sustained a left tibia fracture in the early 1990s and underwent pinning and later screw removal; no evidence of a tibia fracture or related treatment during service or on separation exam.
- Veteran is service-connected for left ulnar neuropathy; he contends the left tibia fracture is secondary to service or to that service-connected condition.
- The Board conceded a current left tibia disability exists but found no in-service incurrence or continuity from service; STRs and separation exam were normal for the lower extremities.
- VA developed records (VAMC, SSA) and obtained a March 2012 VA exam that did not address the tibia fracture specifically; the Board found no additional development necessary for the tibia claim.
- The Board denied service connection for the left tibia fracture and remanded separate claims (left and right CTS, left knee disability, right elbow) for further, clarified VA examinations due to inadequate prior opinions and inconsistent factual premises.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — left tibia fracture (claimed left leg surgery) | Fracture is related to active service or secondary to service‑connected left ulnar neuropathy; MOS (motor transport mechanic) caused/related | No evidence of tibia fracture in service; STRs and separation exam normal; fracture occurred in 1990s after separation; no nexus to service or to ulnar neuropathy | Denied — preponderance of evidence against service connection for left tibia fracture (including secondary theory) |
| Service connection — left knee disability (chondromalacia/DJD) | Claimed left knee disability related to service | VA 2012 exam said not related; new evidence shows DJD so prior opinion based on inaccurate premise | Remanded — new exam/opinion ordered to address updated record and etiology |
| Service connection — bilateral CTS (right and left) | CTS related to service (MOS as mechanic) or secondary to service conditions | 2012 VA examiner attributed CTS to long construction work history (cement finisher); examiner may have relied on inaccurate work history and did not address STRs showing hand lumps | Remanded — new exam/opinion required addressing STRs, MOS, and accurate work history |
| Service connection — right elbow condition | May be related to or aggravated by right CTS | Insufficient development/opinion tying elbow condition to CTS or service | Remanded and adjudicated together with CTS claims (inextricably intertwined) |
Key Cases Cited
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (Board may recharacterize claims to encompass reasonably raised issues)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (no need for VA exam when medical evidence is unnecessary to resolve claim)
- Shedden v. Principi, 381 F.3d 1163 (2004) (elements required for service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule and weighing evidence)
- Jandreau v. Nicholson, 492 F.3d 1372 (2007) (competency limits for lay testimony on medical etiology)
- Davidson v. Shinseki, 581 F.3d 1313 (2009) (circumstances under which lay persons may offer opinions on diagnosis/etiology)