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Court Wins

Low back disability denial relied on inadequate exam

Zachary Stolz

August 16, 2017

Updated: November 20, 2023



The Veteran served in the United States Air Force from 1949 to 1953 and from 1954 to 1971.  In February of 2008, he filed a claim for service connection for his low back disability.  The claim was denied in June of that same year and he filed an appeal in March of 2009.  In a written statement submitted in June of 2009, the Veteran continued to assert that he was treated for his back condition in service and received a diagnosis of arthritis.  His appeal was denied once more in October 2009.  In response, he filed an appeal to the Board of Veterans’ Appeals.

Board denies service connection for a low back disability

The Board remanded the case for further development in March of 2012.  Per the Board’s remand instructions, the Veteran attended a VA examination in April.  The examiner found that the Veteran’s low back disability was less likely than not caused by his military service because his symptoms had manifested decades later.  However, this opinion did not take the Veteran’s long treatment history into account.  The case was returned to the Board, and a new decision was issued in March of 2012.  The Board found that the previous examination was inadequate as it did not account for the Veteran’s reports of low back pain after service.  A new exam was requested and was conducted in June of 2013.  This new examiner agreed with the prior examiner’s opinion.  The Board then used this new exam as justification for a denial of service connection in their January 2016 decision.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied the Veteran entitlement to service connection for a low back disability.  The Veteran reported back pain starting in, and continuing since military service. He consistently sought treatment for this pain.  The Board relied on a negative VA medical examination that failed to address the Veteran’s competent and credible reports of low back pain ever since service, and adopted the rationale of a prior examination that the Board had found inadequate.

CAVC sets aside the Board’s decision for a new medical opinion

CCK argued, and the Court agreed, that the Board erred in relying on an inadequate examination to deny service connection.  In this case the Board had failed to ensure the VA’s duty to assist the Veteran was satisfied.  The Court vacated the Board’s decision, and remanded the case back to the Board in order to obtain a new VA medical examination and opinion that adequately addresses the etiology of the Veteran’s low back disability.

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

About the Author

Bio photo of Zachary Stolz

Zach is a Partner at Chisholm Chisholm & Kilpatrick. He joined CCK in 2007 and since that time, his law practice has focused on representing disabled veterans before the Court of Appeals for Veterans Claims.

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