200305-74192
200305-74192
| Board of Vet. App. | Aug 31, 2021Background
- Veteran served on active duty from September 1980 to September 1983 and appealed multiple denials of service connection after a May 2015 rating decision. He opted into RAMP (Higher-Level Review) and selected the Board hearing lane under AMA. The Board limited its review to evidence before the RAMP opt-in and evidence submitted within 90 days after his Feb. 2021 virtual hearing.
- Issues on appeal: right thumb cyst; bilateral hearing loss; memory loss; bilateral knee disability; residuals of bilateral feet frostbite.
- Service treatment records (STRs) showed a right-thumb scar at enlistment and later in-service treatment and surgery for a dorsal thumb cyst (1983). STRs included one January 1982 notation of second-degree frostbite of the feet; no STR knee diagnoses.
- Post-service records show later diagnoses of bilateral patellar tendonitis (first reported 2009) and sparse foot complaints (first noted 2012); VA audiology (Dec. 2014) did not meet VA regulatory criteria for hearing loss; multiple treatment notes show intact memory.
- The Board granted service connection for the right thumb cyst (found to be a preexisting condition aggravated in service) and denied service connection for bilateral hearing loss, memory loss, bilateral knees, and bilateral feet residuals—finding lack of current VA diagnoses, lack of in-service incurrence/continuity, or lack of probative nexus evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right thumb cyst — service connection (aggravation) | Thumb cyst began/was worsened by service; surgery and recurrence during service | VA examiner said no permanent aggravation; evidence silent after surgery | Granted — preexisting thumb disorder was aggravated during service; presumption of aggravation not rebutted |
| Bilateral hearing loss — service connection | Hearing loss due to military noise/exposure | Audiometric testing (Dec 2014) does not meet VA thresholds; no medical diagnosis for VA purposes | Denied — no current VA-level bilateral hearing loss per 38 C.F.R. §3.385 |
| Memory loss — service connection | Veteran reports persistent memory problems since service | No clinician diagnosed a memory disorder; treatment records repeatedly show intact memory | Denied — no evidence of a diagnosed memory disorder during appeal period |
| Bilateral knee disability — service connection | Knee injuries from military duties (jumping from vehicles, artillery work) and ongoing symptoms | STRs lack knee diagnosis/complaint; earliest knee diagnosis decades post-service; lay nexus insufficient | Denied — no in-service incurrence, continuity, or probative medical nexus established |
| Bilateral feet (frostbite residuals) — service connection | Frostbite in service produced current residuals (discoloration, skin changes, pain) | STRs show single frostbite entry with no follow-up or chronicity; little post-service corroboration; lay opinions not competent for complex medical etiology | Denied — single in-service notation without evidence of chronic residuals or nexus to current condition |
Key Cases Cited
- Walker v. Shinseki, 708 F.3d 1331 (clarifies continuity of symptomatology for presumptive service connection)
- Davis v. Principi, 276 F.3d 1341 (preexisting disease aggravation standard)
- Wagner v. Principi, 370 F.3d 1089 (government burden to rebut presumption of aggravation)
- Jandreau v. Nicholson, 492 F.3d 1372 (limits lay competence to medical diagnosis/etiology in complex matters)
- Hensley v. Brown, 5 Vet. App. 155 (VA audiometric criteria context)
- McLendon v. Nicholson, 20 Vet. App. 79 (standards for when VA must provide an examination)