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CCK Appealed Board Denial of Low Back Claim Based on Inadequate Consideration of Functional Loss

CCK Appealed Board Denial of Low Back Claim Based on Inadequate Consideration of Functional Loss

Summary of the Case

The Veteran served on active duty in the United States Navy from March 1957 to January 1959, and from October 1961 to September 1962. While in service, an examiner noted that the Veteran suffered from a knee condition and spondylolysis of the lumbosacral spine. The examiner opined that he could not return to active duty as a result of these conditions. After service, the Veteran was granted service connection for a lumbar spine disability with a non-compensable rating. The Board of Veterans’ Appeals later awarded a rating of 10% for his lumbar spine disability until October 8, 2013, and 20% thereafter. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (CAVC) seeking a higher rating. A prior joint motion for partial remand stipulated that a November 2011 VA medical examination report was inadequate.

 

Board Denies Higher Rating for Low Back Disability Based on Functional Loss

In December 2015, the Board awarded the Veteran a rating of 20% for the time period prior to October 8, 2013. It also granted a rating of 40% from that time period forward. However, the Board denied a higher rating for the Veteran’s low back disability prior to October 2013. In its decision, the Board heavily relied on an April 2011 VA exam concerning the Veteran’s back condition. The examiner conducting the exam stated that, “while the Veteran had pain on motion, there was no additional loss of motion after repetitive testing.” Using this reasoning, the Board argued that the Veteran’s condition did not warrant an increased rating.

 

CCK appeals to CAVC and CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in its decision denying the Veteran entitlement to a higher rating for his low back disability. Specifically, the Board’s decision inadequately explained why it appeared to require “additional” functional loss apart from painful motion demonstrated on the VA examination. As the Court stated in its decision, “It appears that the Board took the examiner’s statement of no additional functional loss, to mean no functional loss, and consequentially failed to account for the functional loss exhibited within the examination.”

The Court vacated the Board’s decision and remanded the case back to the Board for readjudication.

Category: Court Wins

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