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Court Wins

Board Erred in Improperly Rejecting Veteran’s Lay Statements

Michael Lostritto

August 25, 2017

Updated: June 20, 2024



The Veteran served on active duty in the Air Force from 1965 through October of 1968 as a jet mechanic.  During service, he was sucked into a jet engine intake and injured his left side.  After his accident, he was given aspirin and told to return to duty.  He continued to experience left-sided pain after service which worsened over time.  In 2008, he filed a claim for service connection for disabilities of the left shoulder, arm, and leg. VA denied his claim and the Veteran appealed to the Board.  After finding a 2012 VA medical opinion insufficient for rating purposes, the Board remanded the case for a new examination and opinion.  VA obtained an opinion in October of 2014.  The examiner opined that the Veteran’s in-service injuries were not related to his current disabilities.

Board denies service connection for disabilities of the left upper and lower extremities

The Board issued a decision in November of 2015 denying the Veteran’s claims for service connection.  The Board found the Veteran’s contentions regarding his in-service injury and subsequent symptoms were less probative than the lack of corroborating medical evidence in the record.  Additionally, it concluded the two VA medical opinions of record were the most probative evidence.  Therefore, the Board found service connection was not warranted.

CCK appeals to the Court

CCK appealed the Board’s denial of the Veteran’s claims to the Court of Appeals for Veterans Claims.  In its decision, the Board denied service connection because it concluded the Veteran’s statements regarding his continuous left-sided symptoms were entitled to less probative weight than the medical records, which showed no injury and no treatment of the symptoms until 2008.

Board improperly rejected Veteran’s lay statements

CCK argued, and the Court agreed, that the Board committed error in its decision.  Specifically, the Board erred when it failed to give adequate reasons or bases for concluding the Veteran’s lay statements were not entitled to probative weight.  The Court agreed that the Board improperly rejected the Veteran’s lay statements about his symptoms solely because they were not corroborated by medical records, which constitutes legal error.  Accordingly, the Court set aside the Board’s decision and remanded the issue of service connection for left shoulder, upper arm, hip, leg, and foot disabilities.  On remand, the Board must adequately address the Veteran’s lay statements.

To read the Court’s decision, click here.

About the Author

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael