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 application of a duplicitous legal standard by the BVA to a veteran’s TDIU appeal, in what is called a “reasons and bases” error by the Board of Veterans Appeals. While it favored a VA C&P medical opinion… Read More
This case involves several issues but centered around two: the veteran’s entitlement to increased TBI (Traumatic-Brain-Injury) and migraine ratings.  ISSUE ON APPEAL TO THE CAVC (TBI & Migraine Ratings). The veteran in this case was in a c… Read More
ISSUE ON APPEAL TO THE CAVC: PTSD rating higher than 50-percent. The veteran appealed to the Board of Veterans Appeals (BVA) seeking a PTSD rating higher than 50-percent. The VA had performed a VA C&P examination and opinion in January 2019. Rely… Read More

See More Appellate Results

Taking Point! Blog

Oct
20
Racist Ideas, Attitudes, and Behavior On March 1, 2016, the Department of Veterans Affairs (VA) announced it proposed disciplinary action against three Board of Veterans’ Appeals (BVA) attorneys and two judges who had repeatedly sent racist… Read More
Sep
1
By: Yalitza Ledgister, writing for “The Bridge” One day my son came home from school and, pointing to his brown arms, asked, “Mom, why can’t I have white skin?”  After the initial shock and parent-fail slap wore off, I… Read More
Jul
24
Even as protestors march across bridges across the nation, from the Brooklyn Bridge to the Golden Gate, history teaches us that America is resistant to acknowledging the persistent racism that plagues this country and even worse, resistant to do… Read More
Jun
26
“I am a Black man who jogs” was written by Augustus Turner, Mr. Turner retains all copyright to the image and content; it is republished here with his permission. Augustus Turner is a husband, a father, a soldier, and an attorney.… Read More

Read the "Taking Point!" Blog