Low back condition denial relied on inadequate exam

Low back condition denial relied on inadequate exam

Summary

The Veteran served in the United States Navy from 1985 to 1989 and from 2005 to 2006.  In May of 2009, he filed a claim for a low back condition.  In July of that same year, he attended a VA examination.  During the exam, he complained of low back pain that radiated into his left leg.  The VA granted service connection for his low back condition at 10% back to the date of his claim.  In July of 2010, the Veteran filed an appeal, requesting an increased rating above 10%.  After another denial, he appealed his case to the Board of Veterans’ Appeals in January of 2012.

Board denies compensation for low back condition

The Veteran testified at a Board hearing in September 2015 in support of his case.  In April of 2016, the Board issued a decision denying an increased rating above 10% prior to July of 2009.  In its decision, the Board relied heavily upon a 2009 VA exam. This exam maintained that the Veteran’s range of motion was consistent with the 10% rating criteria.  However, the examiner failed to discuss whether the Veteran’s pain, weakness, or lack of endurance in his low back would have constituted a loss of function and entitled the veteran to a higher disability rating.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied a rating in excess of 10% for the Veteran’s low back condition.  CCK argued that the 2009 VA exam did not consider that the symptoms of the Veteran’s low back condition might constitute a functional loss, and was therefore inadequate for rating purposes.  Based on this inadequate VA examination, the Board found that a rating above 10% was not warranted prior to July of 2009.

CAVC agrees the exam was inadequate

CCK argued, and the Court agreed, that the Board erred when it relied on the 2009 VA examination.  The Court concluded the examination was inadequate, as it did not comply with case law requiring examiners to discuss a veteran’s functional loss and flare-ups of pain.  Accordingly, the Court vacated the Board’s decision and remanded the case.  The Board must now consider obtaining a retrospective medical opinion to determine the severity of the Veteran’s low back condition.

To read the Court’s decision, click here. 

Category: Court Wins