Board Fails to Address Lay Evidence Regarding Severity of Condition in Decision to Deny Veteran Increased Rating for Lumbar Spine Disability
CCK Law: Our Vital Role in Veterans Law
Board Denies Veteran Increased Rating for a Lumbar Spine Disability by Stating he was not Competent to Provide an Opinion Requiring Medical Knowledge
CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied the Veteran a rating greater than 20% for a lumbar spine disability before July 7, 2009 and in excess of 40% after that. The Board stated that it recognized the Veteran’s contentions as to the severity of his spine disability but found him not competent to provide an opinion requiring medical knowledge, such as whether his current symptoms satisfy the diagnostic criteria. Yet his lay statements regarding the severity of his disability include contentions his pain was so severe he had to miss work, sitting and standing too long was very painful, using stairs caused severe pain, and his abilities to bend over and brush his teeth, take a bath, and clean himself after a bowel movement were impaired by the pain from his lumbar spine condition.
CCK Successfully Argued that the Board Erred in Finding the Veteran not Competent to Provide Lay Evidence and Failed to Address these Statements Regarding the Severity of the Condition
CCK argued, and the Court agreed, that the Board erred when the Board found the Veteran was not competent to provide lay evidence regarding these matters, which were within his personal knowledge and experience. The Court held that the Board further erred when it failed to explain why the Veteran’s lay statements were not consistent with the factors set out in section 4.40 and 4.47. The Board also erred, the Court held, when it did not address the 4.40 and 4.45 factors in the context of the relevant DC and did not explain whether the evidence was the equivalent of a higher disability rating, or whether it was necessary to obtain a medical examination that addressed these factors.
The Court further held the Board erred when it did not address the Veteran’s statements as to the severity of his condition and whether they warranted extraschedular referral. Additionally, the Court noted the Board observed that the Veteran had flare-ups, but the Board “did not address whether the circumstances required an examination to be given during a flare-up.” The Court vacated the Board’s decision and remanded the case back to the Board to provide adequate reasons or bases for its decision.
