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Court Wins

CCK Helps Marine Corps Veteran Appeal Denial of Service Connection for Knee Disabilities

Michael Lostritto

April 13, 2021

Updated: November 20, 2023


Summary of the Case

The Veteran served the Nation honorably in the United States Marine Corps, including certain periods of active duty service in the Air Force Reserve.  His claims for service connection for bilateral knee disabilities have been before VA for over a decade.  During those ten years, the Veteran has undergone four VA examinations, and his case has been remanded by the Board of Veterans’ Appeals three times. The Veteran sought representation from CCK to assist with his appeal to the Court of Appeals for Veterans Claims.

CCK Argues Against Repeated Board Denials of Service Connection

The Veteran’s appeal focused on four main points.  CCK argued that the Board erred when it (1) relied on examination opinions it had previously found to be inadequate; (2) did not recognize the inadequacy of the most recent VA medical opinion of record; (3) failed to recognize that pain can be a disability under certain circumstances; and (4) failed in its duty to assist him when the Board did not obtain an MRI concerning his knee conditions.

CCK argued that the Board’s prior decision should be set aside because the Board failed to ensure compliance with its duty to assist.  In particular, the Board provided insufficient reasoning when it failed to order an MRI from Veteran’s private doctor and relied upon VA examinations from 2008, 2014, 2016, and 2019 to deny the Veteran service connection.

While the Board had previously found these examinations inadequate, noting that they all failed to provide enough information to decide the Veteran’s claims, the Board used those same exams to deny service connection in this instance.  CCK also noted that none of the exams discussed the Veteran’s competent and credible statements of knee pain in and since service, nor his use of Motrin in and after service to self-treat his injuries.

Court Rules Against Board in Favor of Veteran

Upon hearing CCK’s arguments, the Court sided with the Veteran.  Notably, the Court stated that,

“One would never know from reading the Board’s decision that the Board had previously determined that the December 2008, June 2014, and December 2016 opinions each were The Board stated only that it had earlier remanded some matters, but the Board described those remands blandly as merely seeking ‘further development.’  The Board tells us nothing about why it determined it could rely on these three opinions that it had previously decided were not adequate.”

The Court further asserted that upon remand, “the Board must address this critically important issue and fully explain its reasoning.”  Additionally, it ordered that the parties’ briefs be included in the claims file on remand to assist the Board in its future review of the Veteran’s case.  The Court concluded by setting aside the July 2, 2019 Board decision and remanded the matter for further proceedings consistent with this decision.

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