190820-27099
190820-27099
| Board of Vet. App. | Sep 29, 2021Background
- Veteran served on active duty in the U.S. Army from November 1977 to September 1982.
- Service treatment records (1979–1980) document multiple complaints and treatment for episodic lower back pain/strain; Veteran submitted a 1982 VA claim for a back injury.
- Veteran’s MOS required repeated heavy lifting of projectiles/missiles (50–100 lbs), which he attributes to onset of back symptoms beginning in 1977.
- Post-service treatment includes ongoing back complaints; 2018 lumbar MRI showed multilevel degenerative disc/facet disease.
- VA 2018 examiner opined nexus was less likely than not, citing a decades-long lapse and limited in-service treatment; a February 2020 private opinion (Dr. H.K.) concluded nexus was at least as likely as not, citing in-service complaints, MOS duties, and accelerated degeneration.
- Under the AMA, the Veteran elected a Board hearing (April 2021); the Board granted service connection for the lower back claim and remanded the right and left hip claims for additional VA records (clarify VA treatment dates, obtain pre‑2009 records if available).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — lower back disability | STRs and continuity of symptoms since service; MOS heavy lifting caused/accelerated degeneration; private medical nexus (Dr. H.K.) | VA examiner: less likely than not; long lapse since service and limited in‑service findings | Granted — evidence is in equipoise; reasonable doubt resolved for Veteran |
| Service connection — right hip injury with severe pain | Claimed hip disability related to service/post‑service treatment (asserted) | Records appear incomplete; AOJ may not have obtained all VA clinic records pre‑2009 | Remanded — obtain/clarify VA treatment records (2001–2009 and earlier if any) |
| Service connection — left hip condition with surgery and severe pain | Claimed left hip disability related to service/post‑service treatment (asserted) | Same evidentiary gap re: VA records | Remanded — obtain/clarify VA treatment records (2001–2009 and earlier if any) |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (three‑element test for service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limits on continuity of symptomatology theory and chronic disease rules)
- Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (claimant bears burden for nexus; benefit of the doubt standard explained)
- Wise v. Shinseki, 26 Vet. App. 517 (Vet. App. 2014) (clarifies application of approximate balance/benefit of the doubt in veterans cases)
- Bell v. Derwinski, 2 Vet. App. 611 (Vet. App. 1992) (VA constructive possession of VA records)