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Court Wins

BVA relied on unsubstantiated medical opinion to wrongly deny increased rating for epiphysitis of the lumbar spine

Kaitlyn Degnan

March 6, 2018

Updated: November 20, 2023

Court Win- Increased Rating right leg fracture


The Veteran served in the United States Navy from April 1968 to December 1970. In December 1971, the Regional Office (RO) granted service connection with a noncompensable rating for epiphysitis of the lumbar spine effective from the day after the Veteran’s discharge. In October 1993, the RO granted an increased rating to 10% for slight loss of motion. The Veteran submitted claims for an increased rating for his lower back disability and for service connection for a left leg condition in August 2008. The RO subsequently denied both of the Veteran’s claims; the Veteran appealed to the Board of Veterans’ Appeals. Sadly, the Veteran died of brain cancer in 2013. His widow substituted herself in as claimant.

Board denied increased rating for epiphysitis of the lumbar spine

In June 2016, the Board issued a decision denying the claim for an increased rating for lumbar strain. It found that the objective medical evidence of record was of greater probative value than the Veteran’s lay assertions of severely painful flare-ups that caused difficulty bending forward and walking for prolonged periods. Specifically, the Board conceded that there was no medical evidence on file describing the Veteran’s functional loss during flare-ups. However, the Board determined that no further development of the record was warranted, as additional loss of range of motion “would have to be significant” to warrant a higher rating.

CCK appealed the Board’s denial to the Court of Appeals for Veterans Claims (CAVC).

CCK appeals to the Court, which agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in its decision denying an increased rating for back disability. Specifically the Board relied on its own unsubstantiated medical opinion in an attempt to justify its failure to obtain a clarifying medical opinion addressing the Veteran’s additional functional loss during flare-ups. It also agreed that the Board failed to reconcile its finding of no significant loss of range of motion on flare-ups with the Veteran’s descriptions of difficulty bending and need for breaks from walking.

The Court thus vacated the Board’s decision and remanded the matter back to the Board. The Court also ordered the Board to obtain a new medical opinion or explain why such action was not necessary.

About the Author

Bio photo of Kaitlyn Degnan

Kaitlyn joined CCK in September of 2017 as an Associate Attorney. Her practice focuses on representing disabled veterans before the United States Court of Appeals for Veterans Claims.

See more about Kaitlyn