14-20 574
14-20 574
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served on active duty from March 1954 to March 1956 and sought VA benefits for a lower back disability and bilateral hearing loss.
- Prior administrative history: initial denial in 1962; multiple attempts to reopen; Board reopened and denied on the merits in January 2001 (final after unsuccessful reconsideration in 2003).
- Evidence submitted since 2001 includes a June 2017 private etiology opinion (Dr. R.B.), the May 2017 hearing transcript, and lay statements by the Veteran describing an in-service back injury in 1955.
- Service treatment records from January 1956 document treatment for back trouble attributed to a lifting strain several months earlier; Veteran consistently reported the same in-service event for decades.
- The 1999 VA examiner found no nexus to service; the 1998 and 2017 private opinions supported a service nexus, with the 2017 opinion providing a detailed rationale and record review.
- At the May 2017 Board hearing the Veteran withdrew his appeal for bilateral hearing loss; the Board treated the withdrawal as voluntary and dismissed that issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence was submitted to reopen the lower back claim | New private medical opinion (Dr. R.B., 2017) and lay testimony constitute new and material evidence raising a reasonable possibility of substantiating the claim | Prior Board decision (2001) is final and prior negative medical opinions control; evidence is cumulative or not probative | Reopened: Board found the 2017 evidence new and material and ordered reopening |
| Entitlement to service connection for lower back disability | Veteran asserts in-service injury (1955) and continuity of symptoms; 2017 private opinion links current disability to service | VA relied on 1999 exam finding no nexus and noted intervening events and delayed treatment | Granted: Board weighed evidence, afforded greatest probative weight to the well-rationalized 2017 opinion and resolved reasonable doubt in favor of the Veteran |
| Entitlement to service connection for bilateral hearing loss (appeal) | Veteran no longer pursues the appeal (withdrawal at hearing) | VA/Board lacked appellate issues to address given withdrawal | Appeal dismissed for lack of jurisdiction to review withdrawn issue |
Key Cases Cited
- Shade v. Shinseki, 24 Vet. App. 110 (interpretation of 38 C.F.R. § 3.156(a): low threshold to reopen; "reasonable possibility" standard)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (continuity of symptomatology and chronicity requirements under § 3.303)
- Shedden v. Principi, 381 F.3d 1163 (elements required for service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay evidence competency for medical matters)
- Gabrielson v. Brown, 7 Vet. App. 36 (weighing competing medical opinions)