13-29 601
13-29 601
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served on active duty Aug 1961–Aug 1963 and appealed a June 2011 RO decision denying benefits.
- Claims on appeal: service connection for hearing loss, right hand injury, degenerative arthritis of the hands, and degenerative disc disease.
- Veteran orally indicated in Oct 2016 at a VA exam that he wished to withdraw some claims, but did not provide required written withdrawal; Board deemed appeals still pending.
- Prior remand (June 2014) instructed the AOJ to obtain private and correctional-facility medical records (Dr. K and Deerfield Correctional records); authorizations were later provided but records have not been procured.
- Oct 2016 audiology exam was defective (not performed by a state-licensed audiologist and lacked etiological opinion); prior spine exams did not address the entire spine as required by the remand.
- Board concluded additional development is required and issued a remand ordering record procurement, proper audiology and medical examinations (with etiological opinions), clarification on withdrawal, and readjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — hearing loss | Veteran asserts hearing loss began in service, continued since, and was exacerbated post-service | VA notes lack of written withdrawal and current evidence insufficient; prior audiology invalid (not state-licensed) | Remanded for state-licensed audiology (pure tone + Maryland CNC) and etiological opinion considering service, STQs, and continuity of symptoms |
| Service connection — right hand injury | Veteran contends hand injury occurred in service and symptoms continued since 1969 | VA notes inadequate development and lack of adequate medical nexus opinion; service separation exam normal | Remanded for new exam and nexus opinion addressing service treatment for wrist sprain, post-service treatment, and continuity of symptoms |
| Service connection — degenerative arthritis of the hands | Veteran asserts arthritis related to service injuries/continuity of symptoms | VA asserts insufficient medical nexus and incomplete development | Remanded for hand exam and opinion on onset/relationship to service with full rationale |
| Service connection — degenerative disc disease (spine) | Veteran alleges spine injury in service and ongoing problems since service | VA relied on prior exams that did not address entire spine per remand; nexus opinion incomplete | Remanded for comprehensive spine exam (entire spine) and etiological opinion addressing in-service events and continuity of symptoms |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand creates duty to ensure compliance with Board instructions)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide adequate medical examinations and opinions)
- Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examiner must consider claimant’s lay statements about continuity of symptoms)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence during remand period)