David J. Jones v. Eric K. Shinseki
2012 U.S. Vet. App. LEXIS 2196
| Vet. App. | 2012Background
- Jones, a U.S. Marine Corps veteran, seeks an initial rating in excess of 10% for IBS; service from 1972–1975.
- VA awarded IBS service connection with a 10% rating effective January 28, 2003, after a 2004 RO decision.
- The record shows long-standing GI complaints, including loose stools and diarrhea-like symptoms, with intermittent relief from diet and medications.
- The Board denied a higher rating in 2011, finding no severe IBS with constant abdominal distress; it also denied extraschedular relief.
- The Court vacates and remands for readjudication, excluding consideration of medication relief under DC 7319, and for evaluation of diarrhea vs. loose stools and related evidentiary issues.
- On remand, the Board must assess necessity of a medical opinion and address competency of lay testimony and conflicting medical evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred by considering medication effects outside rating criteria | Jones argues the Board impermissibly weighed medication relief not contemplated by DC 7319 | Secretary maintains regulations do not expressly exclude medication effects and can reflect overall history | Legal error; medication effects not within DC 7319 must not be considered |
| Whether the Board correctly evaluated diarrhea versus loose stools for rating purposes | Jones contends loose stools constitute diarrhea required for higher rating | Secretary contends definitions used do not require liquidity and records show no definite diarrhea | Remand required to distinguish diarrhea from loose stools and to consider competent medical evidence |
| Whether the Board provided an adequate statement of reasons or bases | Board failed to discuss diarrhea diagnosis, lay competence, and supportive medical evidence | Board relied on medical findings; no clear error in reasoning | Remand necessary to address gaps in reasoning and evidentiary weighing |
| Whether the Court has jurisdiction to review the Board’s regulatory interpretation | Court may review Board’s interpretation of regulations governing rating | Court limited to statutory/regulatory framework; cannot review schedule itself | Court retains de novo review over Board’s interpretation of regulations applicable to the case |
Key Cases Cited
- Massey v. Brown, 7 Vet.App. 204 (1994) (legal error when Board uses factors outside rating criteria)
- Drosky v. Brown, 10 Vet.App. 251 (1997) (Board cannot rewrite regulation by considering outside factors)
- Pernorio v. Derwinski, 2 Vet.App. 625 (1992) (using a standard beyond the regulation constitutes error)
- Otero-Castro v. Principi, 16 Vet.App. 375 (2002) (outside-criteria factors cannot support denial when not contemplated by DCs)
- Tropf v. Nicholson, 20 Vet.App. 317 (2006) (plain-language interpretation; deference to Secretary only if consistent with regulation)