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.
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Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
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