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Court Wins

Board Erred in Relying on Inadequate Medical Opinion for Shoulder Disability

Michael Lostritto

March 22, 2018

Updated: February 16, 2024



The Veteran served on active duty in the Navy from August 1952 to August 1956. He served aboard the U.S.S. Snohomish County as a firefighter. While on duty as a firefighter, he fell from a fire pole and injured his neck, shoulder, and low back. The Veteran also performed heavy lifting during service, such as carrying anchor chains, 50-gallon drums, and sacks of vegetables. He was seen for left shoulder bursitis during service and was diagnosed with this shoulder disability in the 1970s. In August 2011, the Veteran filed a claim for service connection for his bilateral shoulder disability. VA denied the claim the following January. The Veteran appealed to the Board of Veterans’ Appeals.

Board denied service connection

While the Veteran’s claim with the Board was pending, he received treatment from a VA physical therapist. The physical therapist opined that the Veteran’s shoulder disability was due to his heavy lifting during service. The therapist also stated that the shoulder disability was related to the Veteran’s service-connected low back disability. From 2014 through 2016, the Board remanded the case three times, and obtained three VA medical opinions on whether the Veteran’s shoulder disability was related to his service or caused or aggravated by his back disability. In September 2016, the Board denied service connection for the Veteran’s bilateral shoulder disability, to include as secondary to his service-connected low back condition.

CCK appeals to the Court

CCK successfully appealed to the Court the Board’s denial of service connection for the Veteran’s bilateral shoulder disability. In its decision, the Board relied primarily on the December 2015 VA medical opinion to deny the claim. The December 2015 VA examiner opined that it was unlikely the Veteran’s bilateral disability was due to his low back disability because there was “no known relationship” between these conditions.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board clearly erred when it relied on the inadequate December 2015 VA medical opinion. The Court held that this opinion failed to adequately address whether the Veteran’s bilateral shoulder disability was aggravated by his service-connected back disability. The Court agreed that the examiner’s statement of “no known relationship” between the disabilities did not sufficiently address whether the shoulder disability was more severe than it should be because of the symptoms of the back disability. Additionally, the Court found that it was particularly important for the examiner to address this in light of the VA physical therapist’s statements. The Court held that remand is necessary for the Board to obtain an adequate medical opinion on the question of aggravation.

About the Author

Bio photo of Michael Lostritto

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.

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