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Board Erred in Denying Service Connection for Ischemic Heart Disease and PTSD, CCK Secures Remand

June 19, 2019
Court Win - Service Connection PTSD

About the Veteran

The Veteran served honorably in the United States Air Force from February 1966 to January 1970 with service in Vietnam.  He initially applied for service-connected compensation for ischemic heart disease in August 2010, but was denied in a Rating Decision a year later.  In December 2011, the Veteran filed a claim for service connection for post-traumatic stress disorder (PTSD); however, this claim was also denied.  The Veteran continued to appeal both denials of service connection for ischemic heart disease and PTSD.  Eventually, his appeals reached the Board of Veterans’ Appeals, where they were once again denied.

Board denies service connection for ischemic heart disease and PTSD

In February 2018, the Board issued a decision that denied service connection for an acquired psychiatric disorder, including adjustment disorder with mixed anxiety and depressed mood and a heart disability other than ischemic heart disease.  In its decision, the Board relied heavily on a January 2014 VA examination report.  The Board specifically discussed the examiner’s conclusion in relation to the Veteran’s acquired psychiatric disorder.  Here, the examiner noted that the Veteran’s symptoms were most likely the result of childhood abuse that the Veteran allegedly reported during the examination.  While the Board noted that the Veteran challenged the examiner’s statement that he had reported abuse, it never resolved the factual question as to whether the examiner misunderstood the Veteran or whether he actually reported abuse during the examination.  Instead, the Board concluded that the VA examination report was detailed and credible, and deserved the greater probative weight.

In regards to the Veteran’s service connection claim for ischemic heart disease, the Board found that the Veteran had diagnosed heart conditions other than ischemic heart disease.  However, it determined that these conditions were not related to service.  The Board did not explain the basis on which it reached its conclusion concerning the Veteran’s non-ischemic heart conditions.

CCK argues against Board decision, appeals to CAVC

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for an acquired psychiatric disorder and a heart disability other than ischemic heart disease.

Service Connection for Heart Disability Other Than Ischemic Heart Disease

In regards to the Veteran’s heart disability, CCK argued that the Board erred when it denied service connection.  Specifically, the Board only considered presumptive service connection for ischemic heart disease, but did not consider any theories of direct service connection for the heart conditions with which he was diagnosed.  The Board conceded that remand was warranted and the Court agreed.  On remand, the Board must ensure that it fully describes its reasons for reaching its service-connection determination concerning the Veteran’s non-ischemic heart conditions.  The Board must also ensure that it has adequate medical evidence before it to reach its conclusions in this regard.

Service Connection for an Acquired Psychiatric Disorder

Here, CCK argued that the Board erred when it relied on an inadequate January 2014 VA examination report.  The examiner acknowledged the Veteran’s symptoms, but then opined that they were not due to service because they were due to childhood physical abuse.  However, in years of treatment records, the only time that this abuse was noted was during this 2014 VA examination.  Furthermore, the Veteran directly challenged the adequacy of the examination for this reason, saying that his statements were taken out of context.  The Court agreed with CCK’s arguments, finding that the Board erred in relying on the VA examination without resolving the factual question as to whether the examiner misunderstood the Veteran or if the Veteran actually reported abuse during the examination.  The Court also found that the Board rejected the Veteran’s version of events because he was not competent to provide a nexus opinion.  However, the question was not whether the Veteran could say that abuse did not cause his condition, but rather what happened at the examination because the Veteran had personal knowledge of that.  Furthermore, the Board did not explain why it determined the examiner was correct about what the Veteran told him and why the Veteran was wrong.  In doing so, it never made any credibility findings for the Veteran.  On remand, the Board should explain its reasoning regarding the report of abuse, and if it determines the examiner was incorrect, order a new examination.

To read the Court’s full decision, click here.

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