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.
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