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Court Wins

CCK Successfully Argues Board Error in Chronic Bronchitis Case

Bradley Hennings

July 20, 2021

Updated: November 20, 2023


Factual and Procedural History

The Veteran served on active duty in the United States Army from March 2003 to January 2005.  While stationed at Fort Knox in Kentucky, the veteran was exposed to asbestos and mold in the barracks.  There he received in-service treatment for his condition, but he continued to suffer from chronic bronchitis affecting his pulmonary function.

The Department of Veterans Affairs (VA) Regional Office in Denver, Colorado initially issued a rating decision in August 2013, denying the Veteran a grant of VA disability benefits.  He later filed to appeal this decision.  In February 2017, the Veteran presented testimonial evidence of his current condition before the Board of Veterans’ Appeals (Board).  The Board remanded his case for additional development in August 2018, requesting a new Compensation and Pension exam.

In January 2019, a VA examiner determined the Veteran had chronic bronchitis, as well as asthma limiting his pulmonary function and an inactive type of acute bronchitis requiring an antibiotic.  The examiner stated that the chronic bronchitis was at least as likely as not related to or caused by the in-service bronchitis.  The VA Denver Regional Office then ordered an addendum opinion.

A different VA medical examiner gave the addendum opinion in March 2019.  This time, the examiner concluded that the Veteran’s current chronic bronchitis was less likely than not sustained from his in-service bronchitis.  Despite an in-service diagnosis of acute bronchitis in 2003, and again in 2004, the medical examiner dismissed any connection, as the Veteran did receive additional treatment or provide any new evidence until 2013.  The examiner determined that the Veteran now suffers from asthma unrelated to his time in service.

Board Denies Service Connection for Chronic Bronchitis

Based on this evidence, the Board determined that VA ordered an addendum opinion because the first VA examiner did not provide a nexus.  Essentially, the Board claimed that the January 2019 examiner did not specify whether the Veteran’s conditions were related to or caused by his active duty.

Due to this supposed omission, on May 23, 2019, the Board denied service connection for the Veteran’s chronic bronchitis based on the March 2019 examination.  According to the Board, the criteria for service connection had not been met.

CCK Argues Board Error in Service Connection Decision

Chisholm Chisholm & Kilpatrick LTD challenged the May 23, 2019 Board of Veterans’ Appeals decision, citing obvious Board and VA errors on a few accounts.

The Board and VA favored the March 2019 VA medical exam after determining that the January 2019 exam did not provide a nexus opinion.  However, CCK argued that the January examiner did offer a nexus opinion proving service connection, which the Board disregarded.

Additionally, the Board previously acknowledged that the Veteran’s statements hold more weight than those of a lay person due to his medical training.  CCK noted that the Board failed to provide sufficient reasoning for not holding the Veteran’s statements in equal regard to the statements made by the medical examiner.

Furthermore, the Board must provide an adequate reason for rejecting any evidence considered favorable to the Veteran.  CCK argued that the Board did not offer a reasonable explanation for ignoring both the January 2019 nexus evidence and the Veteran’s statements regarding his condition.

CAVC Remands Veteran’s Claim for Chronic Bronchitis

The United States Court of Appeals for Veterans Claims (CAVC) agreed with CCK’s assertion that the Board clearly erred in ignoring the nexus opinion given in the January 2019 VA Compensation and Pension exam.  The Court reversed the Board’s finding that the January 2019 examiner did not provide a nexus.

The Court remanded the rest of the Board’s decision.  The Board of Veterans’ Appeals will have to reconsider the January 2019 examiner’s nexus opinion and the Veteran’s statements, and give adequate reasons for the weighing of favorable evidence.  Any further evidence and argument the Veteran submits to substantiate his claim within the allocated time must be considered by the Board as well.

About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

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