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Court Wins

Court Remands Board Decision Based on Duty to Assist Error

January 13, 2022
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Summary of the Case

The Veteran served honorably in the United States Army from August 1983 to June 1986.  In January 2016, the Veteran filed a claim for disability benefits for multiple conditions related to his service.

In September 2016, the U.S. Department of Veterans Affairs (VA) awarded the Veteran compensation for a right shoulder strain and tinnitus but denied service connection for obstructive sleep apnea, chronic bilateral hip disorder, chronic bilateral knee disorder, and chronic bilateral foot disorder.  The Veteran appealed this decision, seeking service connection for the conditions that VA denied.

The case reached the Board of Veterans’ Appeals (Board) on November 13, 2019.  The Board granted service connection for obstructive sleep apnea but also denied service connection for his left and right hip disorders, right foot disorder, and his chronic left knee disorder.  The Board remanded the issue of service connection for the Veteran’s chronic right knee disability.

The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC), requesting reconsideration of service connection for his disabilities of the right hip, left hip, left knee, right foot, and left foot.

CCK Argues Duty to Assist and Board Errors

On May 21, 2021, Chisholm Chisholm & Kilpatrick LTD represented the Veteran before the Court.  CCK argued that VA made a duty to assist error when it failed to obtain private medical treatment records at the time of the rating decision on appeal.

CCK also argued that the Board relied on an inadequate August 2016 VA examination report.  Despite the examiner noting that the Veteran had weakness in walking and difficulty sitting, the examiner still determined that he had no current disability in his left knee.

Court Remands Veteran’s Appeal Based on Duty to Assist Error

The Court agreed with CCK’s assertion that the Board failed to provide an adequate statement of its reasons or bases with respect to VA’s duty to assist.  Due to this, the Court remanded the decision back to the Board for further proceedings.

Upon remand, the Court instructed the Board to address the duty to assist error and the internal inconsistencies within the August 2016 medical examination.