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Board dismisses favorable evidence, wrongly denies the Veteran an increased rating for a lumbar spine disability

Board dismisses favorable evidence, wrongly denies the Veteran an increased rating for a lumbar spine disability

Summary

The Veteran served on active duty from 1977 to 1980.  In 1981, she was granted service connection for a lumbar spine disability incurred during active duty.  In February 2008, she filed a claim for an increased rating in excess of 20%.  She underwent an examination which indicated that activities such as sitting, housework, and lifting exacerbated her back pain.  She noted that during flare-ups  she had difficulty walking, and could be incapacitated for days.  The Regional Office denied her entitlement to an increased rating in August 2008.  She appealed the denial to the Board, which remanded the issue for further development in March 2012.

Board denied increased rating for lumbar spine disability prior to March 2014

Per the Board’s remand order, VA ordered another Compensation & Pension examination in March 2014.  Based on the findings of this examination, the Board granted the Veteran a 40% rating from 2014 forward.  It continued to deny entitlement to a rating in excess of 20% prior to March 2014.

CCK appeals to the Court

CCK  appealed the Board’s denial of an increased rating for the Veteran’s lumbar spine disability prior to March 2014.  In its decision, the Board stated that the 2008 examination indicated that the Veteran did not experience a limited range of motion reduction following repetition of movement which would warrant a rating in excess of 20%.  The Board further noted that a remand would serve no useful purpose because the findings of the 2008 examiner were too remote to enable a probative finding on the Veteran’s range of motion.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that it was error for the Board to rely on the 2008 examination for its findings regarding the Veteran’s functional loss prior to March 2014.  It further agreed that the Board erred when it found that a retrospective opinion could serve no useful purpose.  Specifically, the Court opined that an examiner could review the Veteran’s statements regarding her flare-ups during the earlier time period and opine on additional functional loss based on that evidence.  The Court set aside the Board’s decision and remanded the issue of entitlement to a rating in excess of 20 percent for the period prior to March 2014 for readjudication consistent with its decision.

Category: Court Wins

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