BVA erred by not addressing secondary service connection based on aggravation
This case involved a veteran's entitlement to secondary service connection, on an aggravation theory, for degenerative disc disease of the lumbar spine.
The BVA is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable a veteran to understand the precise basis for the BVA's decision, as well as to facilitate review in the CAVC. 38 U.S.C. § 7104(d)(1).
The BVA denied secondary service connection on an aggravation theory when it wrote that the veteran had “acute and transitory back pain in service, and that his current back pain is not causally related to, or aggravated by, active service.”
The BVA failed to discuss, or even mention, the secondary service connection aggravation evidence, which showed the veteran had an abnormal spine examination with flattening of the lumbar spine on his entrance examination and at his Air Controlman Candidate examination. The BVA clearly failed to provide analysis regarding the issue of secondary service connection based on aggravation.
Moreover, the BVA found a VA C&P Examiner opinion and addendum to be the most probative opinions of record, even though the examiner failed to provide any opinion regarding the issue of secondary service connection based on aggravation in either his opinion or addendum opinion. The BVA was required, on remand, to consider the adequacy of the exam.
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Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
OGC Attorney: Laura A. Bernasconi
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Michael Martin
Regional Office: Houston, Texas, VA Regional Office
Vets’ Rep at BVA: Texas Veterans Commission (TVC)
Date of BVA Decision: January 28, 2015
Date of CAVC Judgment on Remand: June 16, 2016