16-33 203
16-33 203
| Board of Vet. App. | May 31, 2017Background
- Veteran served active duty Sept 1955–June 1979, including service in the Republic of Vietnam (June 1970–Jan 1971).
- Claims on appeal: service connection for peripheral neuropathy (right and left upper extremities), PTSD, a heart condition; increased rating for recurrent bilateral inguinal hernias; and a temporary total disability rating for post‑surgical convalescence.
- VA previously granted service connection for diabetes mellitus and peripheral neuropathy of the lower extremities; Veteran alleges upper‑extremity neuropathy secondary to diabetes.
- Medical evidence includes VA exams (2010, 2012, 2013, 2014, 2016) and treatment records; examiners repeatedly found no peripheral neuropathy in the upper extremities.
- Veteran had right inguinal herniorrhaphy Sept 30, 2013; records show small, readily reducible recurrent hernia before surgery and no recurrent hernia on later exams; he reports using a jock strap and limited activity post‑op.
Issues
| Issue | Plaintiff's Argument (Veteran) | Defendant's Argument (VA) | Held |
|---|---|---|---|
| Service connection — peripheral neuropathy, right upper extremity | Tingling/numbness in right upper extremity due to diabetes; request service connection | Objective medical evidence and VA exams show no diagnosis of upper‑extremity neuropathy; lay assertions insufficient | Denied — no current diagnosis or probative medical nexus |
| Service connection — peripheral neuropathy, left upper extremity | Tingling/numbness in left upper extremity due to diabetes; request service connection | Same as above: exam and treatment records do not show left upper‑extremity neuropathy | Denied — no current diagnosis or probative medical nexus |
| Service connection — heart condition (ischemic heart disease) | Claimed heart condition; relates to in‑service herbicide exposure in Vietnam | VA contested causation in some exam opinions but did not rebut regulatory presumption of herbicide exposure; evidence of atherosclerotic disease and prior MI scarring supports ischemic heart disease | Granted — ischemic heart disease service‑connected on herbicide exposure presumptive basis |
| Increased rating — recurrent bilateral inguinal hernias | Hernias cause pain, require support belt, limit lifting/driving; seek >10% | Objective exams show hernias were small, readily reducible and well supported; later exams show no hernia and no belt indicated | Denied — 10% rating appropriate; no evidence to support 30% or extraschedular referral |
| Temporary total rating under 38 C.F.R. § 4.30 | Post‑op convalescence (six weeks light duty, inability to drive) warrants temporary 100% rating | Regulatory standard requires report at discharge/outpatient release establishing ≥1 month convalescence or severe postop residuals; records do not show such findings | Denied — evidence does not establish regulatory convalescence or severe postop residuals |
| PTSD claim | Veteran reports combat stressors and prior PTSD diagnoses in VA treatment records; seeks service connection | VA exam history inconsistent; Board finds insufficient clarity whether PTSD was a current diagnosis during pendency and whether linked to in‑service stressors | REMANDED — for further development and a new PTSD exam addressing diagnosis and nexus |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA notice/claims procedures cited)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (reasoned medical opinions requirement)
- Stefl v. Nicholson, 21 Vet. App. 120 (medical opinion adequacy)
- McClain v. Nicholson, 21 Vet. App. 319 (current disability at time of claim or during pendency)
- Romanowsky v. Shinseki, 26 Vet. App. 289 (relevance of recent pre‑claim diagnoses)
- Thun v. Peake, 22 Vet. App. 111 (extra‑schedular rating analysis under §3.321)
- Johnson v. McDonald, 762 F.3d 1362 (combined effects and extra‑schedular consideration)
- Reonal v. Brown, 5 Vet. App. 458 (reliance on flawed medical opinions)