14-08 618
14-08 618
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served active duty Oct 1995–Jun 1998; suffered an in-service motor vehicle accident (1997) with subsequent neck surgery and multiple scars. Psychiatric hospitalization noted in Apr 1998.
- VA initially denied psychiatric service connection (2003); claimant reopened in 2011 and received VA exams diagnosing paranoid/chronic schizophrenia and reporting psychiatric symptoms from service period onward.
- Multiple VA opinions conflicted on nexus between current schizophrenia diagnosis and in-service events; July 2016 VA examiner opined onset in service while February 2017 addenda disagreed.
- Veteran has service-connected migraine headaches (rated 30%); evidence (2016–2017 treatment notes) shows substantially increased frequency/intensity of headaches.
- Multiple scars: left hip (bone graft donor site), scalp and neck laceration scars (including a 16 cm scalp scar and a ~2 cm neck scar), and right thumb scars; ratings and whether scars are painful/unstable were contested.
- Procedural posture: appeal from Jan 2012 RO decision; Board granted service connection for paranoid schizophrenia, increased headaches rating to 50%, 10% for left hip scar, denied increases for scalp/neck beyond the already-awarded 30% for disfigurement and 10% for painful scarring, denied compensable rating for right thumb scars; TDIU remanded for readjudication after implementation of grants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for psychiatric disorder (paranoid schizophrenia) | Schizophrenia/psychiatric disorder began in or is related to service (motor vehicle accident, in-service psychiatric incidents, or secondary to service-connected conditions) | VA examiners and RO argued lack of evidence of psychotic disorder in service or within one year after service; some opinions attributed in-service treatment to intoxication not psychosis | Granted service connection: evidence was in relative equipoise; benefit-of-the-doubt applied to award service connection for paranoid schizophrenia |
| Increased rating for post-traumatic headaches (from 30%) | Headaches have worsened (frequency up to multiple times daily; associated nausea, photophobia, functional impact) supporting 50% rating | Historical 30% rating; need to show very frequent completely prostrating/prolonged attacks producing severe economic inadaptability | Granted 50%: record shows very frequent/prostrating attacks affecting employability; resolved in claimant's favor under doubt doctrine |
| Compensable rating for left hip scar (DC 7804) | Left hip scar is painful and tender, warrants compensable rating | Prior decisions varied; RO previously noncompensable for certain periods | Granted 10%: scar found painful; no evidence of instability, deep tissue loss, or functional limitation to support higher rating |
| Increased rating for scalp/neck scars — disfigurement (DC 7800) | Scalp scar >13 cm and neck scar ≥0.6 cm wide produce disfigurement potentially warranting >30% | RO previously granted 30% for disfigurement but denied higher award; no additional disfiguring characteristics documented | Denied increase above 30%: two characteristics present (support 30%) but record lacks further disfigurement criteria needed for higher rating |
| Increased rating for scalp/neck scars — painful scarring (DC 7804) | Scalp and neck scars are painful, possibly supporting >10% under painful/unstable scars criteria | Only two painful (but not unstable) scars documented; higher ratings require more painful/unstable scars | Denied increase above 10% for painful scarring: two painful scars support current 10% but not the higher tiers |
| Compensable rating for right thumb scars (DC 7804) | Right thumb scars are unsightly and cause tightness, possibly compensable | Examinations show scars not painful or unstable and no functional limitation | Denied compensable rating: preponderance of evidence shows nonpainful, nonunstable scars without functional loss |
| TDIU (total disability based on unemployability) | Veteran argues service-connected disabilities cause inability to secure/maintain substantially gainful employment | TDIU adjudication depends on combined rating after implementing Board allowances | REMANDED to AOJ: implementation of awards and assignment of ratings/effective dates required before TDIU can be adjudicated; further development directed |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (sets out nexus and elements for establishing service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule when evidence is in equipoise)
- Pierce v. Principi, 18 Vet. App. 440 (2004) (interpretation of DC 8100 migraine rating language and economic inadaptability)
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (requirement to correctly characterize claims and ensure complete adjudication under VA procedures)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA duty to obtain adequate medical examinations/opinions for direct and secondary theories of service connection)