Caring. Effective. Efficient.

Service Connection by Aggravation for back condition

Service Connection by Aggravation for back condition

This case involves the BVA's rejection of a theory of service connection by aggravation for a back condition.

The BVA refused to service connect the veteran's back injury, which he argued was aggravated by service-connected knee and hip injuries, by relying on four inadequate medical opinions.

Our client appealed the BVA’s decision to the U.S. Court of Appeals for Veterans Claims (CAVC).

The appeal was resolved through a joint motion to remand: the government attorney agreed with Alexandra Curran’s arguments that the Board failed to properly analyze whether evidence presented by the Veteran constituted new and material evidence.

ISSUE ON APPEAL TO THE CAVC: Service Connection by Aggravation

This appeal involved a veteran who served in the Army from 1980 to 1987.

He was trying to service connect his back injury, which he believed was secondary to - or aggravated by - his service-connected hip and knee injuries. 

The BVA relied on four inadequate medical opinions to deny the  service connection by aggravation for the back condition.

One medical examiner said that there was no evidence that military service aggravated his back condition because the veteran was "on profile" for a short time in the military.

The examiner "reasoned" that having time off helped the injury, and did not aggravate it.

If this reasoning applied to all claims for service connection, nobody could be service connected, because treatment more often than not helps to improve a disability or disease. 

Another medical examiner considered the theory of service connection by aggravation for the back injury, butused the wrong legal standard.

That examiner, whose opinion the BVA judge relied on, required the veteran show that his back condition was "made permanently worse beyond its natural progression" by the veteran's service connected hip and knee conditions. 

The other two medical opinions were equally inadequate.

Two take away points.

1.) Proving service connection by aggravation.

Service connection by aggravation is a type of "secondary service connection" claim. 

A veteran must prove that a non-service connected condition was aggravated by a service connected condition.

Don't confuse this with the  presumption of aggravation, which applies only when a condition that pre-exists service is noted on an entrance physical and military service aggravates that condition beyond its natural progression.

Proving service connection by aggravation requires a veteran only to prove that any increase in severity caused by the service-connected condition was not due to the natural progress of the condition. 38 C.F.R. §3.310(b). 

You do NOT need to show that the non-service connected condition was made "permanently worse" by the service connected condition.

2) Inadequate VA C&P Opinions.

Almost all VA exams and opinions are woefully inadequate.

To be adequate, a VA C&P opinion must contain three things, at a minimum: clear conclusion, supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v Peake, 22 Vet. App. 295, 304 (2008).

A reasoned medical explanation should be much longer than a "tweet." And have more substance, too.

Unfortunately, most VA C&P opinions are woefully inadequate, typically offering  50 words or less of explanation, giving little to no insight into the medical reasoning that explained the lack of nexus between service and disability. 

Most of the times we see nonsense like the opinion in this appeal:

The C&P examiner reasoned that having time off for a back injury in service improved, and did not aggravate, the back condition.

If this reasoning applied to all claims for service connection, nobody could be service connected, because treatment more often than not helps to improve a disability or disease. 

The BVA Judges, as we saw in this case, are rarely (if ever) a check on the inadequacy of VA C&P opinions. Most times, they simply rubber-stamp the opinion without giving it a second thought.


The Secretary agreed that the BVA erred in denying service connection by aggravation for the back injury, vacating and remanding the BVA decision. 

The Veteran and the VA’s Office of General Counsel filed a joint motion to vacate and remand the appeal back to the Board to fix its errors.

If the BVA decision in this case sounds like yours, or if you have a BVA decision that involves secondary service connection, service connection by aggravation, or a VA C&P medical opinion that appears inadequate, reach out to the law firm of Attig | Steel.

Click here to submit your BVA decision and one of our attorneys will see if there is anything we can do to help.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Mark J. Hamel

Veteran Representation at CAVC: Alexandra Curran (link to bio)

Board of Veterans Appeals Veterans Law Judge: Thomas H. O'Shay

Vet's Rep at BVA: pro-se

Date of BVA Decision: January 9, 2019

Date of CAVC Judgment on Remand: December 30, 2019

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

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
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
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
“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