16-42 035
16-42 035
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served July 1965–July 1967 including service in the Republic of Vietnam; herbicide exposure conceded.
- Appeal concerns: (1) service connection for prostate cancer (alleged due to Agent Orange), (2) higher than 60% rating for service‑connected coronary artery disease with atrial fibrillation, and (3) entitlement to TDIU.
- Record contains no diagnosis of prostate cancer during the appeal period; post‑service records show BPH and a separate pancreatic cancer diagnosis.
- Most recent VA heart exam was 2010; a 2016 private DBQ relies on older testing (MET testing in 2013 not of record; LVEF testing in 2006).
- RO previously obtained a July 2016 opinion (no physical exam) finding the veteran could perform sedentary work; private physician opinion (Jan 2016 DBQ) reported exertional dyspnea and fatigue affecting work capacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for prostate cancer (Agent Orange) | Veteran asserts prostate cancer caused by herbicide exposure in Vietnam | VA: no competent medical evidence shows a current prostate cancer diagnosis; no exam required absent such evidence | Denied — no current diagnosis of prostate cancer in record; service connection not established |
| Higher rating (>60%) for coronary artery disease with atrial fibrillation | Heart condition causes exertional dyspnea, fatigue, weakness; claimant seeks reassessment | VA: existing record lacks recent VA exam; private DBQ relies on outdated testing; further development needed | Remanded — obtain updated VA exam (assess METs, LVEF, CHF, arrhythmia frequency, symptoms) and obtain private/VA records before readjudication |
| TDIU | Veteran stopped work Jan 2007 and contends heart disability precludes employment | RO's July 2016 opinion (no exam) found ability to do sedentary work; record conflicting with private physician opinion | Remanded — obtain opinion addressing occupational impairment (consider education/training/work history) after updated exam and records |
Key Cases Cited
- McLendon v. Nicholson, 20 Vet. App. 27 (establishes low threshold for when a VA nexus exam is required)
- Duenas v. Principi, 18 Vet. App. 512 (limitations on duty to provide VA exam)
- Mayfield v. Nicholson, 19 Vet. App. 103 (duty to assist and development limits)
- Walker v. Shinseki, 708 F.3d 1331 (rules on continuity of symptomatology and chronic conditions)
- Davidson v. Shinseki, 581 F.3d 1313 (elements required to establish service connection)
- Pond v. West, 12 Vet. App. 341 (service‑connection principles)
- Jandreau v. Nicholson, 492 F.3d 1372 (limits of lay evidence to establish medical diagnoses)
- McClain v. Nicholson, 21 Vet. App. 319 (importance of competent evidence showing diagnosis)
- Snuffer v. Gober, 10 Vet. App. 400 (need for appropriate contemporary exam for rating increases)
- Caffrey v. Brown, 6 Vet. App. 377 (exam necessity for proper adjudication)
- Kutscherousky v. West, 12 Vet. App. 369 (right to submit additional evidence after remand)