Examiner Must Address Theory of Service Connection
CCK Law: Our Vital Role in Veterans Law
Board Denies Secondary Service Connection With Evidence From Examiner
CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied the Veteran service connection for left hip osteoarthritis as secondary to service-connected prostate cancer. The Veteran repeatedly claimed that his left hip disability was caused or aggravated by his physical positioning during his prostate surgery. In its decision, the Board relied on the May 2013 VA examination, noting that the examiner supported her opinion that osteoarthritis was not caused or aggravated by the type of cancer treatment the Veteran received.
Court Agrees with CCK’s Argument that VA Examination Did Not Address Veteran’s Theory of Service Connection
CCK argued, and the Court agreed, that the Board erred when it failed to ensure VA complied with its duty to assist the Veteran by relying on an inadequate VA examination. The VA examination was inadequate because it did not address whether the Veteran’s physical positioning during prostate surgery caused or aggravated his left hip condition – a theory that the Veteran repeatedly raised in the record. The examiner incorrectly only focused on whether the actual radiation treatment caused or aggravated the hip condition. The Court vacated the Board’s decision and remanded the case back to the Board for further proceedings consistent with the decision.
