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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.

RESOLUTION AT THE CAVC:

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

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