13-16 872
13-16 872
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served on active duty Apr 1973–Apr 1976 (honorable discharge); appeal from RO decisions (2010–2013) after Board remand and VA exams following a 2014 hearing.
- Claims: service connection for left hip (secondary to service‑connected left hallux valgus), bilateral sciatica (secondary to service‑connected lumbar degenerative arthritis), acquired psychiatric disorder (anxiety/depression) secondary to service‑connected conditions, bilateral hearing loss; increased ratings for left hallux valgus and lumbar spine; temporary total rating for treatment/convalescence; TDIU.
- Post‑remand VA examinations (most importantly April 2017) found: no current left hip disorder, no current bilateral sciatica, no acquired psychiatric disorder, and audiometry not meeting VA hearing‑loss criteria.
- For hallux valgus: Veteran had bunionectomy/ metatarsal resection (Jan 19, 2011); VA assigned 10% from that date.
- For lumbar spine: service‑connected at 10% (diagnostic codes cited); range‑of‑motion measurements and absence of ankylosis/abnormal gait/IVDS did not meet criteria for higher schedular rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection: degenerative left hip (direct or secondary to left hallux valgus) | Hip pain is related to service or secondary to the service‑connected left great toe condition | April 2017 VA exam: no current left hip disorder; hip pain resolved after aortofemoral bypass; vascular cause more likely | Denied — no current left hip disorder; insufficient nexus to service or secondary condition |
| Service connection: left lower extremity sciatica (direct or secondary to lumbar spine) | Leg pain/sciatica related to service or secondary to service‑connected lumbar arthritis | VA: no current peripheral neuropathy/sciatica; leg pain resolved after vascular surgery | Denied — no current sciatica disorder or sufficient nexus |
| Service connection: right lower extremity sciatica (direct or secondary to lumbar spine) | Same as left leg claim | Same as left leg claim | Denied — no current sciatica disorder or sufficient nexus |
| Service connection: acquired psychiatric disorder (anxiety/depression) secondary to service‑connected conditions | Psychiatric symptoms caused or aggravated by service‑connected disabilities and unemployability | VA exam: Veteran denied depressive/anxiety symptoms; no current psychiatric diagnosis | Denied — no current acquired psychiatric disorder |
| Service connection: bilateral hearing loss | Veteran reports worsening hearing since service | April 2017 audiometry/speech scores do not meet VA hearing‑loss thresholds | Denied — audiometric criteria for hearing loss not met |
| Increased rating: hallux valgus, left great toe (currently 10%) | Symptoms (pain, stiffness, functional loss) warrant >10% | Surgical resection/metatarsal head operation supports 10% from surgery date; later exams show improvement/no assistive devices | Denied — 10% from Jan 19, 2011 is correct; no higher rating or staged increase warranted |
| Increased rating: degenerative arthritis, lumbar spine (currently 10%) | Spine symptoms/flare‑ups and limited function warrant >10% | ROM measurements, lack of ankylosis/abnormal gait/IVDS, and DeLuca factors do not show greater functional loss | Denied — evidence supports 10%; no higher schedular or extraschedular rating |
| Total temporary rating (hospitalization/convalescence) | Post‑op treatment/convalescence after bunionectomy justifies temporary 100% | Records show same‑day discharge, outpatient follow‑up, no ≥21 days hospitalization or required ≥1 month convalescence | Denied — criteria for temporary total rating not met |
| TDIU (individual unemployability) | Combined service‑connected disabilities render veteran unemployable | Combined schedular ratings total 30%; evidence shows non‑service‑connected vascular disease and other non‑service conditions are primary cause of unemployment; VA exams: limitations but can perform light/sedentary work | Denied — service‑connected disabilities alone not shown to cause unemployability; referral for extraschedular consideration not warranted |
Key Cases Cited
- D'Aries v. Peake, 22 Vet. App. 97 (Board remand/substantial compliance standard)
- Stegall v. West, 11 Vet. App. 268 (duty to comply with Board remand)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (medical opinion probative value requirement)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit‑of‑the‑doubt rule)
- White v. Illinois, 502 U.S. 346 (trustworthiness of statements for medical diagnosis)
- Hartman v. Nicholson, 483 F.3d 1311 (notice not required after service connection granted)
- Hensley v. Brown, 5 Vet. App. 155 (service connection by showing current disability causally related to service)
- DeLuca v. Brown, 8 Vet. App. 202 (consideration of functional loss/flare‑ups when rating musculoskeletal conditions)
- Mitchell v. Shinseki, 25 Vet. App. 32 (pain alone does not automatically establish functional loss for rating purposes)