Caring. Effective. Efficient.

Client Win: 15-1473, Vineyard v. McDonald (Service Connection of a Shoulder Injury)

Client Win: 15-1473, Vineyard v. McDonald (Service Connection of a Shoulder Injury)

This case involves 3 errors made by the BVA Veterans Law Judge in denying service connection of a shoulder injury. 

First, the Board of Veterans Appeals is required to address certain evidence favorable to a veteran. 38 U.S.C. § 7104(d)(1).

The BVA denied service connection of a shoulder injury by finding that the veteran “has not described or identified any lay testimony as to left shoulder symptoms in service or since service.” The BVA judge did not notice the 1978 separation examination and report of medical history, which states in the section for “physician’s summary and elaboration of all pertinent data”: “Partial dislocation, left shoulder, 1977, result of playing base football.”

Second, the BVA must ensure a veteran is afforded an adequate medical examination report concerning his claim to service connect a shoulder injury. 38 U.S.C. § 5103A(d)(1). The BVA instead relied on a VA medical opinion for the conclusion that the veteran's shoulder condition is less likely than not caused by or a result of a remote dislocation that occurred in service because the examiner could not find any evidence of a dislocation of the shoulder in the service treatment records. Not only did the examiner fail to consider the 1978 separation examination noted above, it also failed to discuss  a 1975 report of an x-ray taken of the veteran's left shoulder during service.

Third, the Board is required to substantially comply with a prior remand of the Court of Appeals for Veterans Claims.  Stegall v. West 11 Vet.App. 268 (1998). A prior CAVC remand had ordered the BVA to get another medical exam for the veteran's shoulder. Because the BVA did not get the required exam, it  failed to follow the Court's order. 

Based on these 3 errors surrounding the veteran's claim for service connection of a shoulder injury, the CAVC vacated and remanded the BVA decision.  

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Laura R. Braden

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: Matthew D. Tenner

Regional Office: Waco, Texas, VA Regional Office

Vets’ Rep at BVA: Disabled American Veterans (DAV)

Date of BVA Decision: March 18, 2015

Date of CAVC Judgment on Remand: November 12, 2015

Recent Cases

This case involves the BVA’s dismissal of a veteran’s claim for an earlier effective date for his service-connected post-traumatic stress disorder (PTSD) based on clear and unmistakeable error. Our client appealed the Board’s decision to th… Read More
The cause number of this appeal, and the veteran’s name, have been withheld to protect the veteran’s privacy. In this case, the BVA denied an increased rating of 70% to a veteran for his service-connected PTSD. The BVA also found the vete… Read More
This case involves a veteran’s appeal to the BVA seeking service connection for arthritis.  The veteran served in the US Air Force from 2005 to 2006. He injured his knee and other parts of his body when required to move heavy appliances into a… Read More

See More Appellate Results

VA Form 21 Blog

May
28
What is the Deep Issue in the Case? This case had two issues: one statutory and the other constitutional. Issue#1: 38 U.S.C. §5103A(a)(1) requires the Secretary “assist a claimant in obtaining evidence to substantiate the claim.” The… Read More
May
15

Read the VA Form 21 Blog