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Court Wins

CCK Successfully Argued for Remand from Court in Case Involving Gulf War Illness

Jenna Zellmer

March 3, 2019

Updated: November 20, 2023

Court Win - Service Connection PTSD

The Veteran served on active duty in the United States Air Force from January 1994 to November 1997, including service in the Persian Gulf.  In August of 2011, the Veteran filed a claim for service connection for the following: (1) a lumbar spine disability, (2) a right knee disability, (3) a left hip disability, (4) allergic rhinitis, (5) pneumonia, (6) bronchitis, and (7) chronic fatigue syndrome, all including as due to an undiagnosed illness.  In November of 2011, he underwent several VA examinations, but ultimately his claims were denied by the Regional Office in 2012.  From there, the Veteran appealed to the Board asserting that his low back pain, right knee disability, and left hip disability were secondary to his already service-connected left knee disability.  In September of 2013, a private chiropractor opined that the Veteran’s low back pain and left hip disability were related to his left knee pain.  As a result, the Board remanded the Veteran’s claims for new VA examinations in March of 2015.

In accordance with the Board’s remand, the Veteran attended a VA Gulf War general medical examination in December of 2015.  In regards to his low back, left hip, and respiratory conditions, the examiner concluded it was less likely than not that these conditions are related to a specific exposure event experienced during service in Southwest Asia.  The examiner also stated the Veteran’s low back disability was not caused or aggravated by his service-connected left knee disability.  Finally, the examiner found that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome.  Following the examiner’s findings, the Board issued a decision denying entitlement to benefits for all conditions as due to an undiagnosed illness.

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for all of the Veteran’s claimed conditions relating to his service in the Persian Gulf.

Service Connection for Low Back and Left Hip Conditions

In regards to service connection for the Veteran’s low back and left hip conditions, CCK argued that the Board relied on an inadequate VA examination that did not provide sufficient information on aggravation, and overlooked the 2013 private treatment record linking those conditions to his service-connected left knee disability.

Service Connection for Respiratory Conditions

Here, CCK argued that the Board relied on a VA examination that did not contain an opinion as to direct service connection, and that the Board misapplied 38 CFR § 3.317 when it denied service connection for allergic rhinitis specifically because it is a known diagnosis.

Service Connection for Chronic Fatigue Syndrome

CCK asserted the Board should have adjudicated entitlement to service connection for the Veteran’s symptoms of chronic fatigue under 38 CFR § 3.317(a)(2)(ii), and that its denial for lack of a diagnosis was contrary to Saunders (i.e. pain alone, even in the absence of a diagnosis, can serve as a functional impairment and qualify as a disability).

VA responds to CCK’s arguments

VA agreed with CCK’s arguments and conceded remand on all of the Veteran’s claimed issues with the exception of his low back condition.  The Secretary urged the Court to affirm VA’s denial of this condition, arguing the VA examination was sufficient to support the Board’s reliance, and that the 2013 treatment note did not connect the Veterans’ back disability to his service-connected left knee condition.  Instead, VA asserted the 2013 treatment note actually said that the Veteran’s non-service-connected hip condition was causing his knee and back pain.  CCK further argued that because the Secretary was remanding the Veteran’s hip condition claim, at a minimum the claims were inextricably intertwined.

Court sides with CCK

CCK argued, and the Court agreed, that the Veteran’s claims for service connection for a left hip disability and a low back disability are inextricably intertwined.  Given that the Secretary’s assertions that the record reflects that both the Veteran’s hip disability is the cause of his low back pain and that the Veteran’s claim for benefits for a left hip disability must be remanded, it follows that his claim for a low back disability must also be remanded.  The Court also agreed that all other matters on appeal related to the Veteran’s Gulf War service should be remanded as well.

About the Author

Bio photo of Jenna Zellmer

Jenna joined CCK in January of 2014 as an appellate attorney, was named Managing Attorney in September of 2019, and now serves as a Partner at the firm. Her law practice focuses on representing disabled veterans at the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

See more about Jenna