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Court Wins

Board Erred in Denying Service Connection for Recurring Joint Pain Related to Veteran’s Gulf War Service

Robert Chisholm

May 7, 2019

Updated: November 20, 2023

Court Win - Service Connection lung disorder

Summary of the Case

The Veteran served on active duty in the United States Army from February 1971 to February 1973, from January 1991 to July 1991, from May 2000 to January 2001, and from January 2003 to June 2004, with additional service in the Army National Guard of Puerto Rico.  He experiences recurring joint pain in his elbows, knees, and wrists, which he attributes to his Gulf War service in 2004.  The Veteran initially applied for service-connected compensation for his recurring joint pain in 2004.  However, he was denied.  The Veteran continued appealing and received various diagnoses for his conditions since May 2006.  In September 2015, the Board of Veterans’ Appeals remanded his claims to obtain a VA examination that determined whether the claimed conditions may be an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) warranting presumptive service connection.

The Veteran attended this examination in May 2016 and was diagnosed with osteoarthritis and degenerative joint disease in his elbows and knees, and a strained wrist with no pain.  The examiner opined that his conditions are not Gulf War related, but are instead of clear and specific known etiology and cause (i.e. repetitive use and aging).  In February 2017, the Board relied on this examination to determine that the Veteran’s recurring joint pain was not due to an undiagnosed illness or MUCMI, and deny service connection.  The Board concluded that the VA examination was adequate, substantially complied with its remand instructions, and resolved the inconsistencies within the record.  Furthermore, the Board placed greater weight on the May 2016 examiner’s opinion because the examiner provided his opinion after reviewing the conflicting medical evidence of record.     

CCK argues the May 2016 examination is inadequate, Court agrees

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for his elbows, knees, and wrists, to include as due to an undiagnosed illness.  CCK argued that the most recent VA examination in May 2016 did not comply with the Board’s prior remand instructions because it did not reconcile his past diagnoses.  CCK also argued that the Board failed to consider whether the recurring joint pain the Veteran experienced could be attributed to an undiagnosed illness.

The Court agreed that the May 2016 VA examination did not comply with the terms of the prior remand order.  Although the examiner did address the questions in the remand order, he did not provide any rationale for those answers or his ultimate conclusion.  The Court also agreed that it was not clear from reviewing the examination that “any inconsistencies have been resolved”.  Moreover, the examiner failed to explain how the conditions at issue all have a clear and known etiology and why his conditions were most likely caused by repetitive use and aging.  As a result, the Court set aside and remanded the Board’s decision for readjudication.

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

About the Author

Bio photo of Robert Chisholm

Robert is a Founding Partner of CCK Law. His law practice focuses on representing disabled veterans in the United States Court of Appeals for Veterans Claims and before the Department of Veterans Affairs. As a veterans lawyer Robert has been representing disabled veterans since 1990. During his extensive career, Robert has successfully represented veterans before the Board of Veterans Appeals, Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Federal Circuit.

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