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Court Wins

Denial of service connection resulted from reliance on inadequate medical opinion

Michael Lostritto

March 15, 2018

Updated: June 20, 2024



The Veteran served honorably in the United States Army from July 1984 to July 1991 and from March 2003 to February 2004.  Less than a year after his discharge, in November 2004, testing revealed that the Veteran suffered from markedly elevated lipid levels and elevated liver enzyme levels.  A VA medical provider described persistent elevated liver function testing. The following February, the Veteran underwent a diagnostic liver biopsy.  On the basis of the biopsy, he received a diagnosis of non-alcoholic steatohepatitis (NASH).  The Regional Office denied service connection for NASH, and the Veteran appealed the RO’s decision to the Board of Veterans’ Appeals.

Board denied service connection for NASH

The Board remanded the claim multiple times for further development.  A VA physician in the gastroenterology department opined in July 2014, “it is less likely than not that the Veteran had symptoms of [NASH] in service.”  That December, the Board denied service connection for NASH on the basis of the July 2014 opinion.  The parties agreed that the July 2014 opinion was inadequate because the examiner opined as to whether the Veteran had symptoms of NASH in service, not whether he incurred NASH in service.  The Board then obtained another opinion.

CCK appeals denial of service connection to the Court

CCK successfully appealed to the Court the Board’s denial of service connection for the Veteran’s NASH.  In its decision, the Board relied on April and May 2016 VA medical opinions.  The VA medical professional opined, “it is NOT more likely than not that the Veteran’s diagnosis of NASH is related to his military service, nor was this condition [] diagnosed . . . or in any way manifest during his time in service.”  The Board determined the medical evidence to “indicat[e] that his NASH began months after his separation from his second period of service in February 2004, without any relationship to any incident of service.”

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board clearly erred in determining that the April and May 2016 medical opinions were adequate.  The Court reasoned that the opinions “lack a reasoned medical explanation as to why the examiner believed that a ‘lack of objective evidence’ [of NASH manifestations in service] necessarily excludes the possibility that NASH was incurred during service.”  Because the opinions were inadequate, the Board erred in relying on them.  Accordingly, the Court vacated the Board’s decision and remanded the matter for further proceedings.

To reads the Court’s full decision, click here.

About the Author

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.

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