200329-75624
200329-75624
| Board of Vet. App. | Aug 31, 2021Background
- Veteran served on active duty May 1992–May 1998 and June–Dec 1999 and appealed a Nov 2019 RO rating decision.
- Claims on appeal: right and left ankle disorders, back disorder, bilateral hearing loss, bilateral shoulders, and migraines; Veteran elected the Board's Direct Review docket.
- Oct 2019 VA exams for ankles and back found no current disorder and relied on Sanchez‑Benitez (pain without diagnosis not a disability); examiner did not perform diagnostic testing or x‑rays.
- Apr 2019 VA audiology testing was invalid; another VA assessment that month indicated mild sensorineural loss but pure‑tone results were not in the file.
- Veteran identified private treatment (Franciscan Health—Olympia Fields) and indicated records would be faxed; the RO did not obtain or the file does not contain those private records.
- Board found pre‑decisional duty‑to‑assist errors and remanded: obtain private records, provide new VA exams for ankles and back (including x‑rays and functional‑impairment consideration), and a new audiology exam with nexus opinion to conceded in‑service acoustic trauma if hearing loss is found.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of VA ankle/back exams re: pain as disability | Veteran: pain producing functional impairment can constitute a compensable disability and must be evaluated with testing and functional assessment | VA/RO: October 2019 exams found no current disorder and relied on Sanchez‑Benitez (pain alone insufficient) | Board: Exams inadequate (no diagnostics, insufficient consideration of functional impairment); remand for new exams, x‑rays, and rationale including Saunders standard |
| Hearing loss evaluation sufficiency | Veteran: prior VA assessment suggested sensorineural loss; needs valid audiometry and nexus opinion to in‑service acoustic trauma | VA/RO: April 2019 test results invalid; file lacked complete pure‑tone data | Board: Duty‑to‑assist error; remand for new audiological exam and nexus opinion if hearing loss meets VA standards |
| Duty to obtain private treatment records | Veteran: identified private care and indicated records would be sent; records are necessary to adjudicate claims | VA/RO: did not obtain or did not have records in file at time of decision | Board: RO failed to pursue private records; remand to request authorization and make at least two attempts to obtain records (inform Veteran if unavailable) |
| Scope of review and pre‑decisional error | Veteran: Direct Review was elected, but the AOJ decision lacked required development (exams/records) | VA/RO: Direct Review limits new evidence but does not excuse inadequate pre‑decision development | Board: Direct Review limit acknowledged but found pre‑decisional duty‑to‑assist errors requiring remand for further development |
Key Cases Cited
- Sanchez‑Benitez v. West, 13 Vet. App. 282 (1999) (pain alone without an identifiable pathology does not itself constitute a compensable disability)
- Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (disability under §1110 can be functional impairment from pain even without underlying pathology)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure medical examinations it undertakes are adequate)