15-07
15-07
| Board of Vet. App. | Nov 5, 2017Background
- Veteran served on active duty Aug 1972–Aug 1975 and appealed RO denials to the Board; appeal was previously remanded and advanced on the docket.
- Claims before the Board: service connection for diabetes (type 2), psychiatric disorder (PTSD/depression), respiratory disorder (including COPD due to asbestos), peripheral neuropathies (all four extremities, claimed as herbicide-related), hypertension, heart disability, throat (tonsil) cancer, entitlement to SMC (Aid & Attendance/Housebound), and TDIU.
- Board findings: no competent/credible diagnosis during the claim period for diabetes, heart, or respiratory disease; competent diagnosis exists for throat cancer but no evidence of in-service incurrence or toxin exposure tied to service.
- Credibility and evidentiary gaps: Veteran’s inconsistent statements about Vietnam and lack of corroborating service records undermined his lay testimony about in-service herbicide/asbestos exposure.
- Result: Service connection DENIED for diabetes, heart disability, respiratory disability, and throat cancer. Several other claims (psychiatric disorder, peripheral neuropathy, hypertension, SMC, TDIU) were REMANDED for additional development/examination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — Diabetes mellitus, type 2 | Veteran asserts diabetes is related to service/herbicide exposure | VA: no competent medical diagnosis of diabetes during pendency; no nexus established | Denied — threshold (current disability) not met |
| Service connection — Throat (tonsil) cancer | Veteran asserts cancer caused by service exposures (herbicide/asbestos) | VA: cancer diagnosed, but service records show no tonsil problems; no corroboration of in‑service exposure; Veteran gave inconsistent statements | Denied — no in‑service incurrence or competent evidence linking cancer to service |
| Service connection — Respiratory disability (COPD) due to asbestos | Veteran contends respiratory disease caused/related to in‑service asbestos exposure | VA: no competent/credible diagnosis of respiratory disability during claim period; no corroborated exposure evidence | Denied — threshold (current disability) not met |
| Service connection — Heart disability | Veteran asserts heart condition related to service | VA: no competent/credible diagnosis during pendency | Denied — threshold (current disability) not met |
| Service connection — Hypertension | Veteran asserts hypertension related to service | VA: examiner opined not service‑connected but gave inadequate rationale | Remanded — for an adequate VA opinion addressing in‑service headaches/dizziness and rationale |
| Service connection — Peripheral neuropathies (various extremities) | Veteran asserts neuropathies due to herbicide exposure | VA: prior exam inconclusive as to current neuropathy diagnosis | Remanded — obtain proper exam/opinion if diagnoses present |
| Service connection — Acquired psychiatric disability (PTSD/depression) | Veteran claims psychiatric disorder due to service | VA: relevant service treatment records were associated after last exam; prior exam may be incomplete | Remanded — obtain new opinion/exam considering updated records |
| Entitlement to SMC and TDIU | Veteran seeks SMC/TDIU based on claimed disabilities | VA: cannot grant because service connection not established; issues are intertwined with outcomes of remanded claims | Deferred/Remanded — reserved pending resolution of service‑connection claims |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements required for service connection)
- Brammer v. Derwinski, 3 Vet. App. 223 (Vet. App.) (no claim without a current disability)
- Woehlaert v. Nicholson, 21 Vet. App. 456 (Vet. App.) (laypersons generally not competent to diagnose complex medical conditions)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (lay evidence competency principles)
- Layno v. Brown, 6 Vet. App. 465 (Vet. App.) (credibility and lay evidence)
- Caluza v. Brown, 7 Vet. App. 498 (Vet. App.) (duty to assist and medical evidence evaluation)
- Kahana v. Shinseki, 24 Vet. App. 428 (Vet. App.) (evidence credibility assessment)
- Reonal v. Brown, 5 Vet. App. 458 (Vet. App.) (examination must be based on accurate factual premise)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (VA must provide an adequate examination/opinion)
- Harris v. Derwinski, 1 Vet. App. 180 (Vet. App.) (issues inextricably intertwined may be deferred)