Thursday, February 21, 2013
Walker v. Shinseki
Walker v. Shinseki, docket no. 2011-7184 (Fed. Cir. Feb. 21, 2013) The Federal Circuit held that the theory of establishing service connection via a showing of “continuity of symptomatology,” under 38 C.F.R. § 3.303(b), is limited to only chronic conditions listed in 38 C.F.R. § 3.309(a). In this case, a claimant tried to establish service connection for hearing loss with lay statements showing that his hearing worsened in service and continued to worsen following service – in other words, by showing “continuity of symptomatology.” The Federal Circuit held that this method of establishing entitlement to service connection is limited to only to those chronic conditions listed in § 3.309(a). The Federal Circuit acknowledged that there was no specific cross-reference to § 3.309(a) in § 3.303(b), but found that a “harmonious reading” of these regulations (along with § 3.307(a)) “supports an implicit cross reference to § 3.309(a) in § 3.309(b).