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Court Wins

Board Erred in Denying Secondary Service Connection for Orthopedic Conditions, Court Finds

Jenna Zellmer

January 18, 2019

Updated: November 20, 2023

Court Win - Service Connection PTSD

Summary of the Case

The Veteran served on active duty in the United States Marine Corps from June 1972 to May 1974 as a rifleman.  Upon enlistment, the Veteran noted he suffered from “swollen or painful joints”.  During service, he underwent surgery to remove osteochondroma from his feet bilaterally.  This surgery led to his eventual discharge and service-connected benefits.  The Veteran continuously sought treatment for joint pain at VA medical centers throughout the 1990s and early 2000s.  In August of 2007, he applied for service-connected compensation for arthritis of the neck, back, hands, and knees as secondary to his service-connected arthritis of the feet.  At a January 2008 VA examination, the Veteran reported chronic swelling and pain in both feet over the last 20 years, arthritis in his hands and knees since the 1980s, the onset of back pain in 2000, and the onset of neck pain in 2001.  While he showed limited range of motion in all of the affected joints, the examiner concluded that his neck, back, hands, and knee pain was less likely than not secondary to his bilateral foot condition because the onset was more related to his age.  In an April 2011 Board hearing, the Veteran testified that the surgeon who performed his total knee replacement in November of 2007 explained that the arthritis from his feet caused arthritis to spread to his knees, back, and further up his body, and that his gait changed as a result of the arthritis in his feet.

In January of 2015, the Board remanded the Veteran’s case for VA examiners to review additional medical records, administer another examination, and properly address the issue of aggravation.  In September of 2016, the Veteran attended another VA examination in which the examiner again concluded that his conditions were less likely than not related to service because they started many years post military discharge, and were most likely secondary to the natural progression of age-related degeneration.  Following this, the Board issued a denial of his claim.

Board denies secondary service connection for orthopedic conditions

In July of 2017, the Board issued a decision denying service connection for the Veteran’s arthritis of the neck, back, hands, and knees, to include as secondary to his service-connected foot disability.  In its decision, the Board concluded that given a lack of clear in-service injury, the extended interval since separation from service, and also the non-service-related changes, it will attribute the greatest probative value to the conclusions of the VA examinations.  Furthermore, the Board found that the Veteran was not competent to opine on etiology, and thus found his opinion to lack probative value.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied secondary service connection for the Veteran’s arthritis of the neck, back, hands, and knees.  CCK argued that the Board failed to ensure the duty to assist was fulfilled because it relied on inadequate VA medical opinions, which did not sufficiently address the issue of aggravation.  Additionally, CCK asserted that the Board failed to discuss relevant medical evidence, made findings that were contrary to the record, and applied incorrect standards for aggravation.

Court agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to ensure substantial compliance with its January 2015 remand order.  Specifically, neither the September 2016 VA examination nor the February 2017 addendum provide any rationale for why the Veteran’s service-connected foot condition did not aggravate the conditions on appeal.  Accordingly, the Court vacated and remanded the Board’s decision in order for the Board to comply with the January 2015 remand order and address the theory of aggravation.

To read the Court’s full 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