BVA Case 220714-259014: Back

BVAReal Board of Veterans' Appeals decision · October 30, 2024 · SHEREEN M. MARCUS

Outcome

Denied / Remanded

Decision Date

October 30, 2024

Judge

SHEREEN M. MARCUS

Service Era

Not specified

Conditions Claimed

Back Hearing Loss Hip Ankle Heart Respiratory Eye Arthritis Erectile Dysfunction Hypertension

What would this rating pay you? (2026 rates)

Official 2026 VA monthly compensation, including the 2.8% COLA increase.

Rating Married Children

per month · per year, tax-free

Dependent add-ons start at a 30% rating. Child-only and dependent-parent rates: see the full 2026 pay chart.

2026 base rates, all ratings (veteran alone)

Rating	Monthly (2026, incl. 2.8% COLA)
10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Issues on Appeal

BackHearing LossHipAnkleHeartRespiratoryEyeArthritis

Why It Was Decided This Way

If evidence was submitted during the period after the AOJ issued the decisions, which were subsequently subject to higher-level review the Board did not consider it in its decision.

Lastly, a veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise.

Although the Board notes that the third McLendon element typically has a low threshold requiring only that the evidence "indicates" that there "may" be a nexus, the evidence fails to meet that threshold.

Thus, the VA's duty to assist by affording the Veteran a VA examination was not required in this case.

As such, the question concerning nexus may not be competently addressed by lay evidence, and the Veteran's opinion as to nexus, on which this case turns, is neither probative, nor persuasive evidence.

While a claimant is generally entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence, there is no such doubt to resolve in the Veteran's favor in this case.

Thus, with respect to a nexus between the Veteran's current allergic rhinitis and in-service occurrence, the Board assigns more probative weight to the April 2022 VA examiner's opinion which denied service connection after thorough review of the Veteran's file, in-person examination and consideration of the Veteran's pre and post service treatment records.

The Board finds remand is necessary to correct a pre-decisional duty to assist error by affording the Veteran an adequate VA examination.

Authorities Cited

Bond v. ShinsekiBuie v. ShinsekiDavidson v. ShinsekiFagan v. ShinsekiGrottveit v. BrownIn Martinak v. NicholsonJandreau v. NicholsonKahana v. ShinsekiLayno v. BrownLendenmann v. PrincipiLendon v. NicholsonLynch v. McMartinak v. NicholsonPeyton v. DerwinskiPrejean v. WestRobinson v. PeakeSchafrath v. DerwinskiSee Davidson v. ShinsekiSee Guerrieri v. BrownSee Hart v. MansfieldSee Hensley v. BrownSee Layno v. BrownSee Lynch v. McSee Mense v. DerwinskiSee Newhouse v. NicholsonSee Prejean v. WestSee Reonal v. BrownSee Robinson v. PeakeSee Scott v. McSee Shedden v. Principi

Regulations Cited (38 CFR / 38 USC)

38 CFR 20.1105 (2011)38 CFR 20.130338 CFR 20.30038 CFR 20.30138 CFR 3.10238 CFR 3.103(c)(2)(ii)38 CFR 3.156(b) (2011)38 CFR 3.159 (a)(1)38 CFR 3.159(c)(4)38 CFR 3.250138 CFR 3.30338 CFR 3.303 (b)38 CFR 3.303(a)38 CFR 3.303(b)38 CFR 3.30738 CFR 3.30938 CFR 3.309 (a)38 CFR 3.309(a)38 CFR 3.310(b)38 CFR 3.321(a)

Denial Type

Credibility|No Nexus|Duty To Assist

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