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BVA errs in denial of increased rating claim for Veteran’s cervical spine disability

BVA errs in denial of increased rating claim for Veteran’s cervical spine disability


The Veteran served on active duty in the United States Marine Corps from 1986-1992.  In 1989 he sustained injuries to his cervical spine during a car accident in service.  He filed a claim for service connection for a cervical spine disability in June 2008.  In September of that year the RO granted his claim and assigned a 10% disability rating.  The Veteran appealed the 10% rating, and received an increase to 20% in April 2012.  He continued to appeal his current rating, alleging that he experienced severe flare-ups of the condition not adequately compensated by the 20% rating.

Board denied increased rating for cervical spine disability

In June of 2016, the Board denied the Veteran entitlement to a rating in excess of 20% for his cervical spine disability.  When opining on the Veteran’s claim, the Board relied in part on an August 2015 examination.  The examiner found that even during his flare-ups the limitation of motion of his neck was not more severe than that contemplated by the 20% rating criteria.  However, the examiner failed to address limitation of flexion of the Veterans neck.  Therefore, the exam was inadequate for purposes of adjudication.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of an increased rating for the Veteran’s service-connected cervical spine disability.  In its decision, the Board found that the Veterans limitation of motion was not severe enough to warrant a higher rating even if his limitation of rotation measurements were applied to his limitation of flexion.

CAVC Agrees with CCK’s arguments

CCK argued that the Board failed to provide adequate reasons or bases for its decision.  The Court agreed and found that the Board relied on inadequate VA examinations.  Specifically, the August 2015 exam  did not address additional limitation of motion during flare-ups, despite the Veteran’s reports that his neck could be immobilized during such episodes.  Furthermore, this exam addressed only limitation of rotation.  The Board’s use of such measurements to opine on loss of flexion constituted an unsubstantiated medical determination.  The Court vacated the Board’s decision and remanded the issue for further development and readjudication.

Category: Court Wins


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