Caring. Effective. Efficient.

BVA Improperly Rated Service Connected Back Pain

BVA Improperly Rated Service Connected Back Pain

The Board of Veterans Appeals (BVA) denied a veteran a rating higher than 20% for his service connected back pain.  In doing so, the BVA considered only the range of motion listed under the Diagnostic Code for the veteran's back pain.

However, in this case, the veteran reported flareups 8-10 times in the past year that his service connected back pain levels go to "10 out of 10". During those flareups he takes pain medications for relief. The flare-ups of his service connected back pain last 5-7 days, and he could do nothing during those flare ups.

The VA Examiner did not consider the flareups, pain during flareups, or functional loss due to pain during the flareups of pain in assessing the severity of the veteran's back condition.  The Examiner said that these factors could not be assessed unless the exam of the service connected back pain occurred during a flareup.

This was an old trick of the VA - refusing to consider lay evidence of pain and functional loss due to pain during a flareup of the back condition. 

In the Mitchell case, in 2011, however, the Court of Appeals for Veterans Claims put an end to that practice, writing:

"[when an] examiner failed to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and it should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary." Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011). 

As a result of Mitchell, if the  VA Examiner in any case involving a joint (ankle, knee, hip, shoulder, elbow, etc) fails to comment on the impact to the veteran's range of motion due to pain, or function loss during flareups, it is an inadequate medical opinion and the BVA errs to rely on it.

This happens a lot.

A fair "guess-timate" is that 60 - 75% of the opinions that the VA and BVA rely to rate service connected back pain -- or other joint conditions like knees -- are inadequate medical opinions because they fail to consider factors such as functional loss due to pain, functional loss during flareups, pain during flareups, and much more.

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney:Anita U. Ajenifuja

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: Michael E. Kilcoyne

Regional Office: Oakland, California VA Regional Office

Vets’ Rep at BVA: California Department of Veterans Affairs 

Date of BVA Decision: September 1, 2015

Date of CAVC Judgment on Remand: September 8, 2016

Recent Cases

This case involves the application of a duplicitous legal standard by the BVA to a veteran’s TDIU appeal, in what is called a “reasons and bases” error by the Board of Veterans Appeals. While it favored a VA C&P medical opinion… Read More
This case involves several issues but centered around two: the veteran’s entitlement to increased TBI (Traumatic-Brain-Injury) and migraine ratings.  ISSUE ON APPEAL TO THE CAVC (TBI & Migraine Ratings). The veteran in this case was in a c… Read More
ISSUE ON APPEAL TO THE CAVC: PTSD rating higher than 50-percent. The veteran appealed to the Board of Veterans Appeals (BVA) seeking a PTSD rating higher than 50-percent. The VA had performed a VA C&P examination and opinion in January 2019. Rely… Read More

See More Appellate Results

Taking Point! Blog

Oct
20
Racist Ideas, Attitudes, and Behavior On March 1, 2016, the Department of Veterans Affairs (VA) announced it proposed disciplinary action against three Board of Veterans’ Appeals (BVA) attorneys and two judges who had repeatedly sent racist… Read More
Sep
1
By: Yalitza Ledgister, writing for “The Bridge” One day my son came home from school and, pointing to his brown arms, asked, “Mom, why can’t I have white skin?”  After the initial shock and parent-fail slap wore off, I… Read More
Jul
24
Even as protestors march across bridges across the nation, from the Brooklyn Bridge to the Golden Gate, history teaches us that America is resistant to acknowledging the persistent racism that plagues this country and even worse, resistant to do… Read More
Jun
26
“I am a Black man who jogs” was written by Augustus Turner, Mr. Turner retains all copyright to the image and content; it is republished here with his permission. Augustus Turner is a husband, a father, a soldier, and an attorney.… Read More

Read the "Taking Point!" Blog