BVA relied on insufficient exam, wrongly denies claim for Diabetes and Hypertension

CCK Law: Our Vital Role in Veterans Law

Summary

The Veteran served on active duty in the Army from August 1980 to September 1992.  He was granted service connection for bilateral knee chondromalacia at 10% effective September 1992.  This rating was later bifurcated into right and left knee 10% ratings.  In 2009 the Veteran filed a claim for diabetes, hypertension, and right and left lower extremity conditions.  He also filed for an increased rating for his bilateral knee condition.  In October 2009, the RO denied the Veteran’s claims. However, in April 2010 it granted service connection for the Veteran’s left lower extremity radiculopathy.  The Veteran’s case was remanded multiple times before the June 2016 decision on appeal.  In June 2016 the Board denied increased ratings for bilateral chondromalacia and left knee lower extremity radiculopathy.  It also denied service connection for diabetes and hypertension.

CCK appeals to the Court

CCK successfully appealed the June 2016 decision to the Court.  In its decision, the Board required objective evidence of instability, failed to consider separate evaluations under DC 5258 or DC 5259, relied on inadequate examinations, failed to consider G.C. Prec. 1-2017, and denied an increased rating while remanding for further development.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Veteran may be entitled to a separate evaluation under DC 5258 or 5259 under Lyles v. Shulkin (another CCK win!).  The Court found that the Board can not reject otherwise competent and credible lay evidence solely because it was not objective in nature.  In regards to diabetes and hypertension, CCK argued the July 15 examination was inadequate.  Specifically, the examiner did not adequately address whether the Veteran’s service-connected disability aggravated his diabetes and hypertension.  The Court found that the even though the examiner said the Veteran’s obesity, family history of diabetes and hypertension, and his age may have caused or contributed to his current disabilities, it failed to provide the Board with information it needed to decide whether his knees worsened those disabilities.

CCK also argued, and the Court agreed, that the Board failed to determine whether obesity was an intermediate step in the causal chain between his service-connected knee disabilities and his current diabetes and hypertension.  The Court agreed that the Board erred when it did not discuss G.C. Prec. 1-2017, which states that obesity may be an intermediate step between a service connected disability and a current disability that may be service-connected on secondary basis.  Finally, the Court agreed that the Board’s decision was premature under Brambley v. Principi because it remanded entitlement to TDIU.  As TDIU was remanded in part for development on the Veteran’s left lower extremity, the evidence was not complete in regard to his left lower extremity radiculopathy.