Skip to main content
For Immediate Help: 800-544-9144
Court Wins

BVA failed to comply with remand order, wrongly denied service connection for bilateral knee disabilities

Michael Lostritto

February 15, 2018

Updated: February 16, 2024


History of the case

The Veteran served honorably in the United States Marine Corps from 1960 to 1964.  During service, he injured his knees on three separate occasions.  In 2010, the Veteran claimed service connection for bilateral knee disabilities.  The Regional Office denied this claim in 2011.  In 2015, the Board remanded that matter, instructing the RO to obtain additional private medical records and a compensation and pension opinion regarding whether it was at least as likely as not that any knee disorder was of service onset.  The examiner was specifically instructed to consider the Veteran’s complaints of knee pain and locking, as well as the Veteran’s lay statements.  The Board specifically stated that the Veteran’s lay statements must be considered and discussed.

On remand, the examiner indicated that he reviewed the service treatment records, civilian medical records, and VBMS records.  In restating his opinion, the examiner only noted that the VBMS and service treatment records showed no evidence of chronic knee pathology during active duty, and noted instances of in-service knee injuries.  The examiner did not mention the Veteran’s right knee pain, left knee locking, or lay statements.

Board denied service connection for bilateral knee disabilities

In September 2016, the Board denied service connection for right and left knee disabilities.  The Veteran appealed this denial to the Court of Appeals for Veterans Claims.

Court finds medical opinion not in compliance with prior remand order

CCK argued that the Board relied on an inadequate VA opinion which did not comply with the Board’s prior remand order.  Specifically, the examiner failed to address the Veteran’s left knee locking as well as his other lay statements.  The Court agreed with this argument, finding that the Board failed to ensure compliance with its remand order.  The examiner did not  mention the Veteran’s complaints of right knee pain, left knee locking, or lay statements.  The Court indicted that it could “fathom no reason for the Board and the Secretary’s overlooking of such glaring noncompliance with a Board remand order that the law requires.”  As a result, the Court set aside the Board’s denial of service connection for right and left knee disabilities,  and remanded the case for further proceedings consistent with its decision.

To read a copy of the Court’s decision, click here. 

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.

See more about Michael