201118-120640
201118-120640
| Board of Vet. App. | Sep 30, 2021Background
- Veteran served on active duty Aug 1963–Oct 1967 and filed for service connection for a lumbar spine disability.
- Claims history: Aug 2017 rating decision denied; Veteran opted into RAMP and requested higher-level review Nov 2018; Dec 2018 decision again denied; July 2019 VA Form 10182 (hearing docket) filed; August 2019 supplemental private claim and private exam submitted; October 2020 AOJ AMA rating decision issued; November 2020 Form 10182 (direct review) filed and accepted as timely.
- Service records show a January 1968 complaint of a "sore back" and a January 1969 separation exam noting a normal spine and neurologic exam.
- July 2017 VA examination diagnosed degenerative spine conditions and opined that the current condition was less likely than not related to service, citing long post-service silence and age-related change.
- An August 2019 private lumbar spine examination was of record but largely illegible; the Board found the report inadequate and that VA committed a pre-decisional error by not notifying the Veteran to provide a legible copy.
- The Board remanded for further development, ordering VA to obtain a legible copy of the private exam and to schedule a new VA etiological examination by a physician who previously had not examined the Veteran for this claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Nov 2020 Form 10182 was timely and limits the Board to evidence before the Oct 2020 AOJ decision | Veteran sought to switch dockets and filed Form 10182 within required period | VA conceded Form 10182 was valid and governed by AMA timing rules | Board held Nov 2020 Form 10182 valid; review limited to evidence of record at AOJ Oct 2020 decision |
| Adequacy and use of Aug 2019 private medical opinion | Veteran relies on private opinion to support service connection | VA argues the private report is illegible and thus inadequate | Board found the private opinion illegible and inadequate for adjudication; remand ordered to obtain legible copy and notify Veteran (pre-decisional error) |
| Whether VA satisfied its duty to assist by providing an adequate medical examination/opinion | Veteran contends existing record and private exam require consideration and additional development | VA had procured a July 2017 exam but it was insufficient to resolve etiology issues | Board held VA’s duty to assist requires a new, adequate VA exam/opinion addressing etiology, continuity, and reconciling prior opinions |
| Whether remand instructions were required and their scope | Veteran requested adjudication on service connection | VA argued prior development sufficed for decision | Board remanded and directed specific development tasks (obtain legible private report; schedule new VA exam by different MD; require rationale addressing continuity, onset, arthritis within one year, lay statements, and reconciliation with prior opinions) |
Key Cases Cited
- Green v. Derwinski, 1 Vet. App. 121 (1991) (VA duty to assist includes providing adequate medical examinations/opinions)
- Snuffer v. Gober, 10 Vet. App. 400 (1997) (VA must ensure examinations are thorough to inform disability evaluations)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (exam required when necessary to decide claim)
- Stegall v. West, 11 Vet. App. 268 (1998) (VA must comply with remand directives)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (examination must be adequate and based on sufficient reasoning)