17-10 317
17-10 317
| Board of Vet. App. | Oct 27, 2017Background
- Veteran served in the U.S. Navy (Mar 1986–Jun 1995; Jun 1995–Dec 1998) and has verified Southwest Asia service (Kuwait Liberation Medal).
- Multiple claims on appeal from a July 2013 RO decision: service connection for multiple conditions and entitlement to TDIU; some claims adjudicated, others remanded for further development.
- Medical record: current diagnoses include bilateral knee strain, myopia, bilateral hearing loss, and generalized anxiety disorder; VA examinations (2013, 2017) and treatment records reviewed.
- Board found no in-service evidence or nexus opinions supporting service connection for right/left knee strains, myopia, bilateral hearing loss, or acquired psychiatric disorder; denied those claims.
- Board remanded claims for hypertension (increased rating), chronic joint pain, back pain, sleep apnea, respiratory problems, upper GI bleeding, and TDIU for additional development, including updated VA treatment records and a Gulf-War/undiagnosed-illness-focused exam.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — right knee strain | Right knee pain/arthroscopy and ongoing symptoms are related to service | Record silent for in-service knee problems; VA exams find no nexus | Denied — no in-service event or nexus |
| Service connection — left knee strain | Left knee pain related to service | Same: no in-service evidence; VA exams negative for nexus | Denied — no in-service event or nexus |
| Service connection — myopia | Myopia became manifest/debilitating; seeks service connection | Refractive error is congenital; not a compensable disease absent superimposed injury | Denied — myopia treated as congenital defect, not service-connected |
| Service connection — bilateral hearing loss | Hearing loss attributable to service/noise exposure | Military audiograms normal during service; VA exam finds no nexus/delayed-onset not supported | Denied — no nexus to service |
| Service connection — acquired psychiatric disorder (anxiety/PTSD) | PTSD/generalized anxiety caused by service events (combat, specific incidents) | No evidence of in-service mental-health symptoms; VA exam: GAD present but not service-connected; PTSD criteria not met | Denied — no in-service event/nexus |
| Increased rating — hypertension | Veteran asserts unemployment due to hypertension and seeks higher rating/TDIU | AOJ has new VA exam (Sep 2017) not yet considered in RO decision; needs adjudication | REMANDED — AOJ must review new exam and SSOC issued before Board action |
| Service connection — joint/back pain, sleep apnea, respiratory, GI issues; TDIU | Symptoms consistent with Gulf War/exposure; may be qualifying undiagnosed/chronic multisymptom illness; TDIU based on combined disabilities | Prior VA exams inadequately reasoned re: Gulf War presumptive criteria and did not address some diagnoses (e.g., sleep study showing severe OSA) | REMANDED — obtain updated VA records and a fully-rationalized exam addressing undiagnosed/chronic multisymptom illness, diagnoses, nexus, and TDIU interplay |
Key Cases Cited
- Clemons v. Shinseki, 23 Vet. App. 1 (Board must consider claimant’s description, symptoms, and submitted/developed evidence when defining claim scope)
- Rice v. Shinseki, 22 Vet. App. 447 (TDIU raised as part of increased-rating claim when record shows unemployment due to service-connected disabilities)
- Shedden v. Principi, 381 F.3d 1163 (elements required for service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay testimony limits: veterans competent for symptom reporting but not medical etiology absent specialized training)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit-of-the-doubt rule standard)
- Barr v. Nicholson, 21 Vet. App. 303 (adequacy of VA examination requires consideration of prior medical records)
- Gutierrez v. Principi, 19 Vet. App. 1 (presumptive service connection under Gulf War statute does not require medical nexus evidence)
- Scott v. McDonald, 789 F.3d 1375 (Board need not raise procedural arguments not advanced by claimant)
- Dickens v. McDonald, 814 F.3d 1359 (Scott applied to duty-to-assist arguments)
- Winn v. Brown, 8 Vet. App. 510 (refractive errors treated as congenital defects for VA compensation purposes)