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Court Wins

BVA wrongly denies Veteran service connection for leg paralysis pursuant to 38 U.S.C. § 1151

April Donahower

March 1, 2018

Updated: June 20, 2024



The Veteran served on active duty in the United States Navy from May 1958 to June 1962.  Years later, in December 2007, the Veteran underwent an abdominal surgery at a Texas VA facility that left him paralyzed in his left leg.  The Veteran was eventually diagnosed with plexopathy of the left leg with paralysis.  This condition was noted to be secondary to exploratory laparotomy and retroperitoneal dissection, performed secondary to a liprosarcoma.

The Veteran underwent a VA examination in 2010.  The purpose of the exam was to access whether the loss of use of his left lower extremity was the direct result of VA treatment.  The examiner opined that the surgery appeared to meet the standard of care.  He determined that the VA had not practiced carelessness, negligence, lack of proper skill, or error in judgment, during surgery.  However, a 2012 private physician disagreed with the VA examiner, and stated the surgical method made the resulting disability more likely.  In a 2015 addendum opinion, the original VA examiner failed to alter or supplement his original opinion.  He stated only that he neither “endors[ed] nor contradict[ed]” the 2012 opinion.  In August 2016 the Board denied compensation under 38 U.S.C. § 1151, based on the 2010 and 2015 examination and addendum.

The Board denied compensation pursuant to 38 U.S.C. § 1151

In August 2016, the Board denied compensation under section 1151.  It determined the VA examiner’s opinions more probative than that of the private physician’s.  Accordingly, the Board found the Veteran did “not suffer additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the residuals were not reasonably foreseeable.”

CCK appeals to the Court

CCK appealed the August 2016 denial of compensation under section 38 U.S.C. § 1151 to the Court.  In its decision, the Board provided inadequate reasons and bases for relying on the VA examiner’s opinion.  It also failed to show how this exam was more probative than the contradicting opinion of the private physician.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board was in error.  Specifically, it provided inadequate reasons and bases for relying on a VA examination and addendum opinion.  The Court found that the VA examiner should have provided further rationale on what the standard of care was and why it was met.  It also agreed that the Board did not properly address the contradicting opinion of the Veteran’s physician.  The Court therefore remanded the decision for further development and adjudication.

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

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