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Court Wins

BVA Denies Service Connection for Asthma based on Inadequate Medical Examination

Michael Lostritto

January 25, 2018

Updated: November 20, 2023



The Veteran served on active duty in the Army from 1980 through 1999.  In 2007, he filed claims for service connection for asthma and for a separate lung disability.  The regional office denied his claims for service connection in 2008.  He then appealed these claims to the Board of Veterans’ Appeals.  The BVA remanded the issues several times between 2008 and 2014.  The Board denied the claims in 2014, and the Veteran appealed the denial to the Court.   The issues were sent back to the Board in a joint motion for remand filed later that year.  In October 2015, VA granted service connection for a lung disorder.  Service connection for asthma continued to be denied.

Board denied service connection for asthma

After the previous Board decision remanded the claims for service connection for a lung disorder and for asthma, VA obtained an examination intended to address both issues.  This examiner opined that the Veteran’s lung disability was related to service.  However, he also argued that the  previous diagnoses of asthma had been provisional leading up to the lung disability diagnosis in 2007.  Therefore, he concluded that the Veteran did not in fact have diagnosis of asthma.  Based on this examination, the Board denied the Veteran service connection for asthma in a June 2016 decision.

CCK appeals to the Court

CCK successfully appealed the June 2016 Board decision to the Court of Appeals for Veterans Claims.  In its decision, the Board relied on the VA examination that concluded that the Veteran did not have a current diagnosis of asthma.  This was despite an earlier remand order that instructed the VA to obtain an examination specifically addressing the etiology of the Veteran’s asthma.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the VA examination on which the Board relied was insufficient.  Furthermore, CCK argued that the Board failed to ensure compliance with an earlier remand order by relying on it. The Court agreed that the Board’s earlier remand instructions to address the etiology of the Veteran’s asthma was a protected finding that the Veteran did indeed have the disease.  The Court therefore held that the Board’s decision lacked adequate reasons or bases based on its reliance on the medical examination which found that the Veteran did not have asthma.  Ultimately, the Court vacated the Board’s decision and remanded the issue of service connection for asthma.

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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