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Court Wins

Board Relied on Inadequate VA Examinations to Deny Veteran’s Claims, Court Finds

Michael Lostritto

March 27, 2019

Updated: February 16, 2024

Court Win- Increased Rating right leg fracture

Factual and Procedural History

The Veteran served in the United States Air Force from 1992 to 1996.  She initially filed for service-connected compensation for a low back disability, neck disability, and adjustment disorder in December of 2010.  In July of 2011, the Veteran received a Rating Decision that awarded a 10 percent disability rating for her adjustment disorder, but denied service connection for her low back and neck disabilities.  She appealed this decision to the Board of Veterans’ Appeals in October of 2012.

In March of 2015, the Board remanded the Veteran’s appeal for (1) a higher rating for her adjustment disorder; and (2) service connection for her low back and neck disabilities.  On remand, the Board ordered VA examinations for both her psychiatric condition and back and neck disabilities.  In regards to the psychiatric examination, the examiner was instructed to address the current nature and severity of the Veteran’s service-connected adjustment disorder.  For the orthopedic examination, the examiner was instructed to determine whether current low back and neck disabilities are present and if so, provide an opinion as to whether it is at least as likely as not that the disabilities were related to service.  In April of 2015, the Veteran was assigned an increased rating of 30 percent for her adjustment disorder.  However, service connection for her low back and neck disabilities remained denied.  She again appealed this decision to the Board, and was denied.

In its August 2017 decision, the Board denied (1) a disability rating greater than 10 percent before June 3, 2015, and 30 percent thereafter for a service-connected adjustment disorder with anxiety and depressed mood; and (2) compensation for a low back disability and a neck disability.  Here, the Board relied on the June 2015 VA examinations as a basis for denial.

CCK argues against the VA examinations

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied the Veteran’s increased rating and service connection claims.  CCK argued that the June 2015 VA examination was inadequate with respect to the Veteran’s adjustment disorder.  Specifically, the Board failed to ensure substantial compliance with the remand order.  CCK also contended that the examination was internally inconsistent and lacked clear conclusions.  With regard to the Veteran’s low back and neck disabilities, the parties agreed that the June 2015 orthopedic examination did not comply with the terms of the March 2015 Board remand order.

Court rules in favor of Veteran

CCK argued, and the Court agreed, that the June 2015 VA examinations, for both the Veteran’s psychiatric condition and low back and neck disabilities, were inadequate.

Adjustment Disorder

In regards to the Veteran’s adjustment disorder, the Court found that the Board erred in relying on an examination that contains internal inconsistencies and falls short of setting forth any clear conclusions, much less articulating a reasoned explanation of the conclusion.  Here, the June 2015 psychiatric examination relied on by the Board included a checked box next to a pre-printed statement that says “a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.”  The Court held that this appears to contradict the examiner’s rationale because the examiner noted the Veteran takes medication to help manage her symptoms.  The examination was therefore internally inconsistent, so the Board should not have relied on it.

Low back and neck disabilities

For the low back and neck disabilities, the Court agreed there was a Stegall violation, meaning the VA examiner did not comply with the Board’s remand instructions.  Here, the March 2015 remand order stated that the examiner should address a June 2011 treatment note, a June 2011 MRI report, a May 1995 chiropractic evaluation, and an October 2011 lay statement.  However, the rationale offered by the examiner did not discuss any of these reports.

Accordingly, the Court set aside the Board’s decision and remanded it back to the Board for readjudication.


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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