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Court Wins

Board Erred in Denying Service Connection for Orthopedic Conditions as Secondary to PTSD

Jenna Zellmer

December 19, 2018

Updated: November 20, 2023

Court Win - Service Connection PTSD

Summary of the Case

The Veteran served in the United States Army from June 1968 to June 1971.  He initially applied for service-connected compensation for a right shoulder condition, bilateral knee condition, and PTSD in April of 2007, and was denied.  He continued to appeal these issues to the Board of Veterans’ Appeals.  In a July 2010 Board hearing, the Veteran testified that he was in an in-service explosion that caused him to injure his right side, including his shoulder and knee.  He also testified that he injured his left knee in service when jumping off of a truck.  However, a June 2011 VA examiner concluded there was not enough evidence in his claims file to support that the conditions were related to service.  In February of 2013, a Regional Office granted service connection for PTSD at 50%, but continued to deny his right shoulder and bilateral knee claims.  Subsequently, the Veteran submitted evidence regarding his right shoulder and bilateral knee claims, stating that VA’s PTSD website indicates that PTSD makes arthritis worse.  In August 2016, a Board decision remanded the Veteran’s claims in order to obtain a medical opinion addressing whether his service-connected PTSD caused or aggravated his orthopedic conditions.  A January 2017 VA examiner noted that there was no basis to conclude that PTSD caused those orthopedic conditions, and they were less likely than not aggravated by PTSD.  The Board ultimately denied the Veteran’s claims based on those findings.

Board denies service connection for orthopedic conditions as secondary to PTSD

In August of 2017, the Board issued a decision denying service connection for the Veteran’s right shoulder and bilateral knee conditions, as secondary to PTSD.  In its decision, the Board relied heavily on the January 2017 VA examination in which the examiner found that the Veteran’s orthopedic conditions were neither caused nor aggravated by his service-connected PTSD.  Specifically, the Board acknowledged the January 2017 examiner’s statement that pain could be influenced by PTSD, but determined that, even if the Veteran experienced an increase in pain, a worsening of his underlying right shoulder and bilateral knee conditions beyond their natural progression had not been shown.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied service connection for the Veteran’s right shoulder and bilateral knee conditions as secondary to PTSD.  CCK argued that the examination was inadequate on the issue of both direct and secondary service connection.  Specifically, the Board failed to explain why an increase in severity of right shoulder and bilateral knee pain due to PTSD would not qualify as aggravation.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to explain why an increase in severity of his right shoulder and bilateral knee pain as secondary to PTSD would not qualify as aggravation under 38 CFR § 3.310(b) – a provision that requires that any increase in severity of a non-service-connected condition due to a service-connected condition be granted service connection.  The Court also noted the recent Federal Circuit decision in Saunders, which highlights the importance of considering pain when determining whether to grant service connection.  Here, the Court recognized that this decision is particularly true in assessing the Veteran’s claims as the January 2017 VA examiner stated that PTSD may influence pain and the June 2011 and May 2014 examiners opined that his orthopedic conditions affected range of motion, caused functional impairment, and impacted his ability to work.  Accordingly, the Court remanded the Veteran’s case back to the Board for readjudication.

To read the Court’s decision, click here.

About the Author

Bio photo of Jenna Zellmer

Jenna joined CCK in January of 2014 as an appellate attorney, was named Managing Attorney in September of 2019, and now serves as a Partner at the firm. Her law practice focuses on representing disabled veterans at the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

See more about Jenna