Denial of low back disability relied on insufficient exam
The Veteran served on active duty in the Army from 1970 to 1972. He was granted service connection for a low back disability with a noncompensable rating from date of discharge. The rating was later increased to 20% effective August 30, 1991. In March of 2006, the Veteran filed an increased rating claim, stating that his low back disability had worsened. VA denied this claim and the Veteran appealed to the Board of Veterans’ Appeals, which denied his claim in 2010. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). A joint motion for remand in November of 2010 stipulated that the Board failed to provide an adequate statement of reasons or bases for its decision.
Board denied increased rating for low back disability prior to December 2010
In December of 2012, the Board granted an increased rating of 40% for the Veteran’s low back disability, effective December 1, 2010. The effective date of the Board’s grant was the date of the Veteran’s VA examination. However, the Board denied an increased rating for the back condition prior to December 1, 2010. The Veteran appealed the denial of an increased rating prior to 2010 to the CAVC. In 2013, the Court granted a joint motion for partial remand and the issue again returned to the Board. The Board denied the Veteran’s claim yet again in December of 2015.
CCK appeals to the Court
CCK successfully appealed to the Court the denial of an increased rating for the Veteran’s service-connected low back disability prior to December 2010. In its decision, the Board relied on a VA examination to determine the Veteran’s back disability did not result in functional loss, which would warrant a higher rating.
CAVC agrees with CCK’s arguments
CCK argued, and the Court agreed, that the VA examination on which the Board relied was insufficient because it did not provide enough information to the Board regarding the extent of the Veteran’s functional loss. The Court also agreed that the Board erred when it failed to address evidence that the Veteran’s pain resulted in weakness, which contradicted the Board’s findings. The Court set aside the Board’s decision and remanded the issue of entitlement to an increased rating in excess of 20% prior to December 2010. On remand, the Board must complete further development, if necessary, and readjudicate the Veteran’s claim.
Category: Court Wins