15-10 831
15-10 831
| Board of Vet. App. | May 31, 2017Background
- Veteran served Jan–May 1991 and Nov 2000–Sep 2011; appeal from Sept 2012 RO decision. Representative: The American Legion.
- Claims included increased ratings for multiple service-connected conditions and a number of new service-connection claims (including left ring finger residuals, intestinal polyps residuals, and seborrheic/actinic keratosis off the face).
- VA previously assigned tinnitus a 10% schedular rating (Diagnostic Code 6260); 10% is the maximum under the diagnostic code.
- STRs and VA/private treatment records document: an Oct 2000 left ring-finger crush/injury (INACDUTRA), recurrent skin lesions (seborrheic/actinic keratosis) during service with removals, and colonoscopy in Oct 2011 with removal of benign colon polyps and later reports of fecal incontinence.
- VA examinations (Jan 2012) addressed tinnitus, dermatologic issues, finger, spine, eye, hearing, and intestinal issues but some exams lacked testing or DBQ detail needed for full rating/analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Higher initial rating for tinnitus | Veteran sought >10% based on ongoing symptoms | VA: 10% is the max schedular rating under DC 6260; no legal basis for higher rating | Denied — 10% is maximum under the diagnostic code; no basis for higher rating |
| 2. Service connection for residuals of left ring finger injury | Veteran: in-service crush injury with ongoing nail abnormality and functional effects | VA: initial development noted minimal residuals; no clear nexus to current disability | Granted — evidence in equipoise; reasonable doubt resolved for service connection |
| 3. Service connection for seborrheic/actinic keratosis (back & upper extremities) | Veteran: in-service lesions, removals, continuing dermatologic treatment post-service | VA: prior service records showed benign lesions; contested nexus to current condition | Granted — STRs, post-service records and lay statements place evidence in equipoise; service connection awarded |
| 4. Service connection for residuals of intestinal polyps (post-removal) | Veteran: polyps removed in 2011 and reports of fecal incontinence starting 2003 | VA: medical exam documented removal but causation/continuity questioned | Granted — evidence in relative equipoise; reasonable doubt resolved in Veteran's favor |
| 5. Increased rating for oral/facial injury, increased rating for DDD spine, increased rating for right eye, compensable bilateral hearing loss, and other claims | Veteran: ongoing symptoms, radicular/back and TMJ complaints, functional impacts | VA: existing exams insufficient/incomplete for rating determinations | Remanded — inadequate medical development; AOJ to obtain updated records and order new VA exams following Correia and DBQ requirements |
Key Cases Cited
- Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (tinnitus limited to single rating under DC 6260)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competence of lay testimony for observable symptoms)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (VA musculoskeletal exams must test pain on active/passive motion and weight-bearing/nonweight-bearing)
- Esteban v. Brown, 6 Vet. App. 259 (1994) (separate ratings allowed for distinct, non-overlapping symptomatology)
- Murray v. Shinseki, 24 Vet. App. 420 (2011) (distinct symptomatology supports separate ratings)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board must assess credibility and probative value of evidence)