Caring. Effective. Efficient.

Client Win: CAVC No. 15-1473, Vineyard v. McDonald (Service Connection of a Shoulder Injury)

Client Win: CAVC No. 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 an Army veteran who served on active duty in 1991 and then from 2008 to 2009 who was seeking a service-connected major depressive disorder rating in excess of 30%. The appeal was resolved through a joint motion to remand. ISSUE ON… Read More
This case involves a survivor’s claim for entitlement to Dependency and Indemnity Compensation (DIC). The appellant’s late-husband served in the US Air Force from 1964 – 1984, and passed away from a rare form of non-Hodgkins lymphom… Read More
This case involved a US Army veteran (1967 to 1971) who was seeking service connection for hypertension, congestive heart failure, Type II diabetes, stroke, and atrial fibrillation due to agent orange exposure in Thailand during the Vietnam war. The… Read More

See More Appellate Results

Taking Point! Blog

Mar
2
In January 2021, the loss of use of a reproductive organ for SMC purposes was the focus of a panel of judges from the U.S. Court of Appeals Veterans Claims issued a precedential opinion in Bria v. Wilkie.   The panel consisted of Judge Mere… Read More
Feb
26
In January 2021, the VA rating for prostate cancer was the focus of a panel of judges from the U.S. Court of Appeals Veterans Claims issued a precedential opinion in Bailey v. Wilkie.   The panel consisted of Chief Judge Bartley (who… Read More
Feb
26
  Bold and unapologetically honest, Pam Keith is a refreshing political voice you need to follow right now.  She smoothly articulates the most rocky and controversial topics of our time.  It is no surprise that this attorney with 25 years of expe… Read More
Feb
12
In November 2020, a panel of judges from the U.S. Court of Appeals Veterans Claims issued a precedential opinion in Holmes v. Wilkie.   In it, the Court laid out a road map for Veterans trying to get the correct VA rating for migraines… Read More

Read the "Taking Point!" Blog