15-23 143
15-23 143
| Board of Vet. App. | Sep 27, 2017Background
- Veteran served in the U.S. Army from May 1966 to May 1969 and appealed VA RO Boston decisions to the Board.
- Veteran is service-connected for bilateral hearing loss and assigned a 10% combined rating.
- VA audiometric exams (July 2011, May 2015) and a VAMC progress note produced audiometry that mapped to Level II (right ear) and Level V/VII/IX (left ear) across exams, producing a 10% schedular rating under DC 6100/Table VI/VII.
- Veteran submitted evidence (a 1967 postmarked letter) that he was hospitalized in service for a "jungle virus;" a May 2015 infectious disease exam said this was at least as likely as not dengue fever but that the infection was inactive since 1967.
- Medical opinions differ as to whether dengue fever caused later antiphospholipid syndrome (APS), hypertension, MRI white-matter changes, or the 2014 stroke; existing opinions were found speculative or lacking necessary rationale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to >10% for bilateral hearing loss | Veteran seeks a higher rating based on hearing difficulty and audiometric changes | VA: objective audiometry maps to Level II/Level V–IX but yields only a 10% schedular rating; subjective complaints are contemplated by the schedule and cannot override audiometry | Denied — 10% rating affirmed (no audiometric results supporting a higher schedular rating) |
| Service connection for residuals of dengue fever (including APS, hypertension, MRI changes, stroke) | Dengue in service caused current APS, hypertension, MRI changes, and the 2014 stroke | VA: existing opinions are speculative/inadequately reasoned; record lacks clear service treatment records documenting dengue; further development needed | Remanded — further medical opinion requested to address causation and provide detailed rationale on specific nexus questions |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (liberal reading of filings does not obligate the Board to search the record for unraised procedural arguments)
- Dickens v. McDonald, 814 F.3d 1359 (applies Scott to duty-to-assist arguments)
- Lendenmann v. Principi, 3 Vet. App. 345 (audiometric testing governs hearing-loss ratings)
- Martinak v. Nicholson, 21 Vet. App. 447 (VA audiologist must describe functional effects of hearing disability in reports)
- Doucette v. Shulkin, 28 Vet. App. 366 (rating criteria contemplate functional effects in everyday environments)
- Warren v. Brown, 6 Vet. App. 4 (medical opinions framed as "may have" are too speculative)
- Obert v. Brown, 5 Vet. App. 30 (opinions expressed as "may" imply uncertainty and are of limited probative value)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit-of-the-doubt doctrine in veterans claims)
- Francisco v. Brown, 7 Vet. App. 55 (for increased-rating claims, focus is on present level of disability)
- Hart v. Mansfield, 21 Vet. App. 505 (different ratings may be warranted for different time periods)
- Kutscherousky v. West, 12 Vet. App. 369 (appellant may submit additional evidence after remand)